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What is testamentary competence in New Jersey?

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Jun 15, 2020 |

Nearly 6 million people in the United States suffer from Alzheimer’s, according to 2019 data from the Alzheimer’s Association. Additionally, 200,000 people under age 65 suffer from younger-onset Alzheimer’s.

Additionally, the number of people who are 65 years old and older keeps climbing. For instance, if you look back at numbers from the year 2000, you will find that only 12.4% of the population was 65 years old or older. By 2030, a decade from now, experts think that about 19% of the population will be 65 years old and older. Part of the reason is that the baby boomers are getting older, and they always represented a spike in population. Another reason is that medical care improves every year, so people can live longer than they used to.

Knowing all this, it is possible that an elderly loved one may be incapacitated or lack testamentary capacity when he or she makes their last will and testament.

What is required for testamentary capacity in New Jersey?

Competence or “testamentary capacity” in New Jersey means that a person is able to make decisions in their own best interest. People who are unable to govern themselves and manage their affairs are incapacitated individuals.

New Jersey state statutes require that the maker of a will be competent and over age 18. The maker of the will (or testator) must also:

  1. Understand what property they own.
  2. Realize the nature of that property: that it is real estate, stocks, an expensive art collection, etc.
  3. Know that they are making a will in order to decide “who gets what” when they die.
  4. Be able to “relate these items to one another” and be clear about “who gets what.” For example, the will maker cannot give the same thing to two people.

It is a complicated matter to prove incompetency. Generally speaking, it must be proved by clear and convincing evidence that the maker of the will did not know what he or she was doing or was coerced.

Precedent shows that lack of testamentary capacity is not proved by small lapses in judgment, memory or quirky foibles, not unless these specifically affected the making of the will.

When people age and feel vulnerable, they can sometimes use their assets to attempt to keep family and friends near, to care for them, and to do their bidding. People facing death or who re heavily medicated also can make off-hand promises or threats. Caregivers, friends, and relations who have been out of the picture can suddenly reappear and insert themselves into the daily life of the elderly person as death becomes imminent, either out of genuine concern or for more selfish and nefarious reasons.

What to do if you suspect the will maker did not have testamentary capacity

If you suspect that the maker of the will – the “testator”- was not competent at the time the will was made or modified, your best next step is to speak with an attorney or firm who handles New Jersey estate and probate litigation.