01 Jul I have my dad’s will. My sister has another. What do we do?
Q. My father died and had a will that he did in 2001. It said he didn’t want my sister to get anything and I would get everything, not that there was much. After I moved everything into my name when he died — my sister didn’t know he was dead for more than a year — she said she had a handwritten will that he signed and said we were to split everything 50/50. I don’t think the will is real. What can she do?
— What a mess
A. That’s a sticky situation.
We’re going to make some assumptions about your case.
First, you said your father “did” a will in 2001. We’ll assume that means the will was validly executed in front of two witnesses.
You said you moved assets into your name, so we’re also going to assume that you submitted the will to probate and that you were appointed executor of the estate by the county surrogate with jurisdiction.
If that’s the case, upon being appointed executor, you would have had a duty under New Jersey law to serve notices of probate on all of your father’s next-of-kin and beneficiaries under the will within 60 days of the date of probate, said Tom Szieber, a trusts and estates attorney at Chiesa Shahinian & Giantomasi in West Orange.
“If you did not do so, then you would not be in compliance with the rules of the court, and such noncompliance would likely strengthen a future challenge to the will by your sister — or any other interested party,” he said.
Szieber said if your sister was not properly noticed, then an application filed with the court by your sister seeking to probate the alleged handwritten will, also known as a holographic will, within a reasonable period of time would likely be entertained.
“Of course, to be found valid, the purported holographic will would need to have been signed by two witnesses or comply with New Jersey’s statute governing `writings intended as wills,’” he said, noting that it requires that material portions of the document be your father’s handwriting with the intent that the document constitute his will and/or that any portions of the document not in his handwriting be “proven by extrinsic evidence to express his testamentary intent.”
Sziber said if the purported holographic will was fraudulent or was denied admission to probate for any other reason, then the 2001 will would stand for your father’s probate assets. If it was admitted to probate, the 2001 will would be set aside and the provisions of the holographic will would be honored, he said.
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This story was originally published on July 1, 2022.
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