A handwritten Will is sometimes called a “holographic Will.” In New Jersey, it is referred to as a Writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously present, and (3) signed by at least 2 witnesses who each witnessed the signing of the Will and who each affixed their signatures within a reasonable time of so witnessing. A Document that doesn’t meet those exacting standards is a “writing intended as a Will.”

To be accepted, such a writing does not have to be witnessed, but the signature and material portions of the document must be in the testator’s own handwriting. There also must be proof that the writing was specifically intended by the testator to be the final expression of his or her wishes.

A major hazard with self-prepared writings intended as Wills is that a court proceeding is required to obtain the necessary court Order that authenticates the document. Very often, such homemade documents give confusing instructions, or create arrangements which are unclear or incomplete, or they leave out certain necessary components.  Notice of the court case has to be given to all of the heirs at law and all those who are named in the document. If any of those people file opposition, this could turn into a very expensive and time consuming contest.

A recent case in Alaska dealt with the question of whether the placement of the signature up at the beginning of the handwritten document rather than in its customary place at the end could still qualify it as the “signature” that’s required. Estate of Baker, 2016 WL 7488253 (Alaska Dec. 30, 2016). This was a hotly contested case, but eventually the Court decided that the document met all of the statutory criteria and upheld the validity of the document.

Better to do it the right way from the start.

Call for advice on estate planning, wills and trusts  … 732-382-6070

 A post by Linda Ershow-Levenberg, Esq. for Fink Rosner Ershow-Levenberg Blog.

Contact Us.