Is A Person Sane Enough to Change Their Last Will? Understanding the Legal Capacity to Revoke a Will, Trust or Other Legal Document in New Jersey?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Litigation Attorney

Here’s a legal memo on the topic of today’s blog. It was written for me by a law clerk on a pending case. It’s straight forward and easy to follow. The capacity (capacity means mental understanding and reasoning) to revoke a Will is the same as to make a Will. See In re Santelli’s Estate. 28 N.J. 331 (N.J., 1958); Will of Nassano, 199 N.J. Super. 414 (N.J. Super. A.D., 1985). It is well established in New Jersey that the standard for testamentary capacity in New Jersey is very low and not difficult to satisfy. In re Wilson’s Will, 107 N.J. Eq. 604 (Perog. 1931); In re Will of Landsman, 319 N.J. Super. 252 (App. Div. 1999); In re Lieble, 260 N.J. Super. 519 (App. Div. 1992). So long the testator can comprehend the nature and scope of his or her property, the objects of his or her bounty and the meaning of his or her Will, the testator maintains the requisite capacity to make or change a Will. In re Heim’s Will, 136 N.J. Eq. 138 (E. & A. 1945). The standard for testamentary capacity is lower than required for other transactions, such as entering into a consumer or business contract, the creation of a trust or even a power of attorney. Even a testator who suffers from a mental condition that affect memory or causes delusions can be competent to make a Will. Ward v. Harrison, 97 N.J. Eq. 309 (E. & A. 1925); Gellert v. Livingston, 5 N.J. 65 (1950).

The same general case law applies to revoking a legal document. New Jersey statutes set forth the requirements to revoke a Will. Pursuant to N.J.S.A. 3B:3-13, a Will or any part thereof is revoked:

  1. By the execution of a subsequent Will that revokes the previous Will or part expressly or by inconsistency; or
  2. By the performance of a revocatory act on the Will, if the testator performed the act with the intent and for the purpose of revoking the Will or part or if another individual performed the act in the testators conscious presence and by the testators direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing, canceling, obliterating or destroying the Will or any part of it. A burning, tearing or cancelling is a “revocatory act on the Will,” whether or not the burn, tear, or cancellation touched any of the words on the Will.

To discuss your NJ Estate Probate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.