Handwritten Wills can be admitted to probate and administered just like any other written will. However, there are some critical differences in how a person is appointed as the personal representative for an estate where there is a handwritten will.
We’ll first talk about the requirements for a standard will, what happens if those requirements are only partially met, and what happens after a person is appointed as the personal representative where there is a handwritten will.
Requirements for a Will
Just because a document that says “Will” is handwritten, does not make it a will. Generally speaking, a will needs to meet three requirements:
- In writing
- Signed by the testator
- Signed by at least two individuals who witnessed the signing of the will [mfn]N.J.S.A. 3B:3-2(a) (1) in writing; (2) 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; and (3) 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;[/mfn]
Here, “in writing,” means that the will is on paper and is not oral.[mfn] In re Parker’s Will, 47 N.J. Super 241, 135 A.2d 678 (A.D. 1957), affirmed 26 N.J. 3521, 140 A.2d 69. [/mfn] It is not enough to verbally tell someone what you want to happen. You must put what you want to happen down on paper. An oral “Will” cannot be enforced, because it’s not a Will under New Jersey law.
If a Will is handwritten and complies with all three of these standards, then the Will is a standard testamentary document and can be admitted to probate just like a typed will. (Though the Surrogate may require a court order to do so.)
What if the requirements aren’t met?
However, where the handwritten document does not comply with the three requirements above, but the document might be considered a “holographic will” where it meets these requirements:
- the document is intended as a will,
- material portions of the will are in the testator’s handwriting, and
- the document is signed. [mfn]N.J.S.A. 3B:3-2(b) A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.[/mfn]
The crucial part of having a document considered a “holographic will,” is whether or not the person who wrote the words intended the words to be considered a will. It is essential to establish that the document was intended to be a will.
The person’s intent can be determined by:
- looking at other documents showing that the document is meant to be a will
- Other documents that are NOT in the person’s handwriting
- Portions of the same document that are not in the person’s handwriting
What Happen When Only Certain Portions of the Will are Handwritten?
If only certain portions of the will are handwritten and other parts of the Will are pre-printed, then New Jersey uses the “surplusage standard.” This standard means that the court ignores all portions of the will that are preprinted and only apply the parts of the will that are handwritten.
If the words that are handwritten do not create in intelligible Will, then the document cannot be considered a holographic will and the court will not admit the document to probate. This means that the estate will follow according to the intestacy statutes.
How to Probate a Holographic Will
If you have a standard Will, then the Will is admitted to probate by the Surrogate of the county where the decedent lived. If you have a Holographic Will, then the person seeking to be the personal representative needs to apply to the Superior Court in the county where the decedent was domiciled at the time of their death.
How to Administer a Holographic Will
Once the judge orders the holographic will to be admitted for probate, the will is administered just as any other estate would be administered.