What Constitutes a Validly Executed Will (Part 2)

                Last week I was telling you about an Australian case in which the court held that a deceased man’s unsent text message found on his phone was considered to be a valid will.  How might a New Jersey court rule on these facts?

                New Jersey law generally establishes that a will should be in writing, signed by the testator (the person who’s wishes are contained in the will) or in the testator’s name by another person in the conscious presence of the testator and at his/her direction.  The will should also be signed by at least 2 witnesses who did so within a reasonable amount of time after witnessing the testator’s signature or the acknowledgement of the testator’s signature.

                What if these requirements aren’t met?  New Jersey law states that a will that doesn’t comply with the witness requirements may still be valid as a “writing intended as a will” if the signature or material portions of the document are in the testator’s handwriting.  That wouldn’t appear to help here since the Australian man texted his wishes.  His stated wishes were not “in his own handwriting”.

                It may, however, still be considered a will if it can be proven so from extrinsic or external evidence.  This evidence could consist of other writings or statements of the testator.  It could also be other parts of the document that are not in the testator’s own handwriting.  Finally, there is another section of the law that provides that the document may be treated as if it complied with the witness requirements if it can be established by clear and convincing evidence that the decedent intended the document or writing to be his will.

                It is impossible to say what a New Jersey court would do here.  Was the man of sound mind?  One might argue no since he committed suicide shortly after composing the text.  But, just because someone commits suicide does not mean they are categorically considered to be of unsound mind.

                And what do we make of the fact that he didn’t send the text?  Did he save it as a draft because he had a change of heart or did he mean to hit “send” and was distracted or mistakenly thought he did hit “send”.  These are probably impossible questions to answer with certainty.  Only the deceased man could tell us what he meant to do.

                What about his relationship with his wife and son?  Articles concerning the case mention strained relations between the man and his wife but no mention of his relationship with his son.  So why would he have intended to leave his son out of his will?  Again, questions that people could reach very different conclusions about.

                As I said last week it’s an interesting case.  The take away, however, is that no one really should want to leave their estate subject to such confusion which only leads to a legal fight with a legal bills that would otherwise have been unnecessary.  New Jersey law establishes a clear and orderly way to leave your possessions after you pass away.  Take advantage of that law.  In the end it will save your loved ones the heart ache and expense that this Australian man left for his family.

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