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:
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