Full question:
I've got a question to ask for my mom. It's regarding an inclusion she wants to add to their will. Both parents are living and a will was written a few years back with an attorney. Mom wants to make a stipulation that when they both pass, after the sale of their home, that a certain dollar amount should first go to my oldest son and his brother to be used solely for the purpose of helping pay off incurred student loans or if applicable,current college costs. One of my sisters once told her that she can write this information on a piece of paper and have 2 people that are not included in the will to sign it, hence acting as witnesses. She plans on putting the paper in the 'box' along with their will. Will this hold up legally if it were disputed by any one of my 3 sisters? Myself and their 3 additional daughters are sole heirs.
- Category: Wills and Estates
- Date:
- State: New Jersey
Answer:
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
To change a will, a person can prepare and properly execute an entirely new will that revokes the previous will or prepare and properly execute a codicil to the will. A codicil is a separate document that adds to and/or replaces one or more provisions in an existing will. A new will is typically recommended over a codicil to minimize the possibility of a later dispute.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
