What Constitutes a Validly Executed Will

                An interesting case caught my eye on the internet the other day.  An Australian court found that an unsent text found in a deceased man’s phone, stating that he wanted his estate to go to his brother and nephew, not his wife and son, composed before he took his own life, constituted a validly executed will.

                The wife took the case to court, claiming the text was not valid because it was never sent.  The court disagreed, finding the phrasing of the text indicated the man was of sound mind when he composed the text.  It also considered the relationship of the decedent and his wife.  Although they were still married at the time of his death the relationship was strained.

                Normally, under Australian law a valid will must be in writing and signed before two witnesses, however, a change in the law 11 years ago now permits less formal documents to be considered wills.  A holographic will is one that is not witnessed and does not comply with the laws relating to the proper execution of a will.

                It is not uncommon for holographic wills to be admitted as validly executed wills.  What makes this case interesting is that the text was found in the man’s draft folder.  He never sent it which could suggest that he had a change of heart or at least was still contemplating how he wanted his assets to be distributed.  One might also question whether he was really of sound mind if he composed it just before he committed the act of suicide.

                What is the law in New Jersey on holographic wills and how might a New Jersey court rule on the facts of this case?  I’ll talk about that next week.

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