May 26, 2020

May 26, 2020

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Valid Execution of a Will

The general conception by most people is that a Last Will and Testament must be signed by the Decedent in the presence of two witnesses. While this is undoubtedly the preferred method for a Last Will and Testament to be executed, it is not the only way that a Will may be deemed validly executed by a Decedent.

In fact, the statute which governs the valid execution of a Will provides a great deal of leeway to ensure that a Decedent’s Last Will and Testament is admitted to Probate. Aside from the preferred method discussed above, there are two other ways that a Decedent’s Last Will and Testament can be deemed validly executed.

The first way that the execution can be deemed valid is if after signing his or her Last Will and Testament the Decedent acknowledges to the witness that in it was his or her signature. The witness would then be able to witness the Will provided the Decedent makes that representation that it is his/her signature on the Will. This can occur when a witness to the Will is not at the same location as the notary who may eventually notarize the Will. The Will may be signed before the notary, and thereafter, the other witness can witness the Will after the Decedent has acknowledged his/her signature.

The next way that a Last Will and Testament can be deemed validly executed is if the Decedent simply acknowledges to a witness that the document which the witness is going to sign is the Decedent’s Last Will and Testament. In other words, the Will does not have to contain the Decedent’s signature for it to be witnessed by a witness, provided the Decedent makes it clear to the witness that the document is his or her Last Will and Testament. This situation can occur if the Decedent wants a witness to witness the Will, and thereafter, wants to take it to a notary who will notarize the signature. Once again, this is very different from the common conception concerning witnessing a Last Will and Testament.

As discussed above, the statute governing the valid execution of the Last Will and Testament is broader than most of the public would anticipate. Problems can still arise in this process if the relevant statute is not met. For the reasons, it is suggested that if there arises an issue concerning witnessing a Last Will and Testament, that a party consult with an attorney in this regard.



About this Author

Paul Norris, Stark and Stark Law, Probate Litigation Lawyer, Construction Attorney, New Jersey

Paul W. Norris is a Shareholder and a member of the Firm’s Litigation Group. Mr. Norris’ areas of practice include: Probate Litigation; Construction Litigation; Commercial Litigation; and Criminal and Municipal Court representation. Mr. Norris has an extensive and growing Probate Litigation practice, which concerns either defending, or initiating Will contests on behalf of beneficiaries and purported beneficiaries of an Estate as well as related litigation. He has both prosecuted and defended actions successfully in this regard, and also serves as a Court appointed...