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All Letters are not Wills

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New Jersey recognizes three different types of wills: 1) a formal will; 2) a holographic will; and a writing that may not meet the state's formalities of a will but can be otherwise proven that it should be treated as a will. A formal will requires that it is signed by the person who is writing it, and two witnesses to attest to the signature. A holographic will is a writing that has been written mostly in the testator's, the person writing the will, handwriting that the court finds is "intended as a will." The last type of will is a writing that does not meet the standards of the other two types but can be established by "clear and convincing" evidence is intended to constitute a will for the deceased. While the first two are easier to discern because of their formal requirements, the last type of will, can very easily become the subject of debate. 

Case Study: In re: Alicia A. Heffley

In In re: Alicia A. Heffley, NO. A-1025-16T3 (N.J. Sup. Ct. App. Div. May 29, 2018), the New Jersey court looked at whether a letter from the deceased or decedent that left her home to her neighbors was merely a writing or whether it was an expression of her intent as the maker of the will or "testamentary intent." 
Heffley shared a close relationship with her neighbors, David and LaNeta Clark. They often socialized and spoke together, and Mr. Clark habitually helped her with house work including snow removal and grass cutting. When Heffley passed, the Clarks handled her funeral arrangements. The Clarks submitted a writing from Heffley to the court as her last will and testament. The court looked at a few key factors to determine whether the writing was a holographic will for Heffley: 1) whether she was of sound mind at the time she drafted the letter, 2) whether the writing sounded like Heffley had written it, and whether it was written in her voice and her handwriting, and 3) whether the letter was drafted with the intent that her assets be distributed according to the letter. 

In looking at her mental state at the time of the letter, the court looked to facts such as that Heffley's home was neat and tidy and her bills were all paid at the time the letter was drafted. She had made all her appointments and did not need much assistance in her daily life.  The writing was also found to sound like Heffley, because of the way "it flowed." For example, Heffley often wrote with a certain "formality" which included speaking about herself in the third person. The writing also included certain "quirks" that reflected her personality, such as discussion of the high cost of living in New jersey and her love of waterfowl. 

The final factor the court looked at, testamentary intent, is more complicated. The court noted that there was an absence of language that indicated she had truly thought about the distribution of her assets at her death in the letter. For example, evidence of testamentary intent may include a statement such as "You know, I've thought about it. I've thought about what I own and what I owe and who I'm close to . . . . This is what I want to do . . . [.]" The court found that her statement that "And, of course I wish - like if I sudenly [sic] I died or something without the will that you folks could have my house even. But, as I said, I need to get $60,000 cash for it, in order to pay for my new place." This statement did not rise to the burden of proof that the court was looking for in order to establish that Heffley intended the writing to be her will. On appeal, the court found that while the first two factors were proven, that the writing belonged to Heffley and was indeed written by Heffley, but it was still not an expression of her testamentary intent.  

Key Points
When offering a writing to the court as a testamentary document, it must meet a high burden of proof upon review; it must be proven that the document was intended by the decedent to be an expression of her testamentary intent by "clear and convincing evidence." 

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