Grounds for Challenging Wills
- Lack of capacity
- Faulty execution
Lack of testamentary capacity can be proven by a showing that, at the time he or she executed the will, the testator failed to understand: (1) the nature and extent of his assets and property; (2) the natural objects of his bounty; and (3) the connection between (1) and (2). Gellert v. Livingston, 5 N.J. 65 (1950). Testators are presumed to have the requisite capacity. These cases generally are more difficult to establish than undue influence cases, because the capacity threshold is so low. In most cases, the contestant will have to produce expert testimony. However, even if the required showing cannot be made, there may be sufficient evidence of diminished capacity which, along with other evidence, will support a finding of undue influence. Note that the key evidence in lack of capacity cases will come from those who observed the testator’s condition at or near the time of the will execution, such as the will scrivener and witnesses. Note also that the standard for testamentary capacity is lower than that applicable to trusts and powers of attorney, so be certain to become familiar with the standards applicable to each.
The will must be executed in accordance with the requirements of N.J.S.A. 3B:3-2:
- In writing [videotapes & audiotapes not acceptable]
- Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction
- Signed by at least two individuals, each of whom signed within a reasonable time after each witnessed the signing of the will…or the testator’s acknowledgment of that signature or acknowledgment of the will
Query: What if a video or audio tape is incorporated by reference?
The Comment to the Uniform Probate Code, Sec. 2-502, upon which New
Jersey’s New Probate Code [effective February 27, 2005] is based, reads:
[I]f…someone else signs the testator’s name, the so-called ‘conscious presence’ test is codified, under which a signing is sufficient if it was done in the testator’s conscious presence, i.e. within the range of the testator’s senses such as hearing: the signing need not have occurred within the testator’s line of sight. [Citations omitted]
In addition, the Comment states that there is no requirement that the witness sign the will before the testator’s death, citing a Texas case in support.
A will not executed in compliance with the foregoing may, nonetheless, be admitted to probate as a “writing intended as a will,” whether or not witnessed, provided the signature and “material provisions” of the document are in the testator’s handwriting. [N.J.S.A. 3B:3-2(b)] A will prepared by the testator on a computer could be valid under this provision. Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including, for writings intended as wills, portions of the document that are not in the testator’s handwriting. [N.J.S.A. 3B:3-2(c)] Again, the UPC Comment is instructive. It expressly countenances pre-printed will forms and states that language such as “I give, devise and bequeath to “ does not disqualify the document as a holographic will.
But see IMO the Probate of the Alleged Will of Ronald D. Ferree, 369 N.J. Super. 136 (Ch. Div. 2003), a Monmouth County case in which the testator’s attempt to devise his estate by means of a pre-printed form was held not to constitute a holographic will under the precursor to the New Probate Code. The court applied the “surplusage theory” to the document:
[It requires that] the non-holographic material [be] stricken and the remainder of the instrument admitted to probate if the remaining provisions made sense standing alone. This is done even though the stricken non-holographic material was clearly intended to have been made a part of the will as is the case where the will is made by filling in the blanks of a printed will form.
***
In this case, an elimination of the pre-printed words renders the offered document meaningless…As can readily be seen, the handwritten portions of this document—standing alone—mean nothing. [Id. at 148. Citation omitted]
Query: Would the outcome have been different under the New Probate Code?
There is an open question as to the burden of proof applicable to such documents. The New Probate Code requires that the proponent of a document intended as a will must establish by clear and convincing evidence that the writing was intended to constitute:
- The decedent’s will
- A partial or complete revocation of the will
- An addition to or alteration of the will
- A partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will
This standard is at odds with the preponderance standard articulated by the New Jersey Supreme Court in Matter of Will of Smith, 108 N.J. 257 (1987), a pre-amendment holographic will case.