Get Rid of That Old Will!

In 1994, Helen M. Weste executed a Last Will. She was single and had no children. The Will made three charitable bequests, left her personal property to a niece, and left the remainder of her estate to be divided in differing percentages among a sister along with eight nieces and nephews.

In 2002, Helen executed a new Will. This Will made a bequest to only one of the three charitable institutions, left her personal property to another niece along with 10% of her residuary estate, left a bequest to the niece who was to receive the personal property under the 1994 Will, and left 90% of the residuary estate to a neighbor she met on or about 1995.

Inexplicably, when Helen died on March 6, 2010, one of her nieces filed the 1994 Will for probate. As all of the named Executors had either died or renounced, she qualified to act as administrator. Over the next few years, she initiated the administration of the estate.

In October 2011, the neighbor filed an action to set aside the 1994 Will and have the 2002 Will admitted to probate. The administrator under the 1994 Will objected claiming that the 2002 Will was the product of undue influence and lack of testamentary capacity.

After reviewing the evidence presented by both sides, the Middlesex County probate judge set aside the 1994 Will and admitted the 2002 Will to probate among other forms of relief. The Appellate Division upheld this decision. (See In re Estate of Weste, No. A-0436-14T1, 2016 N.J. Super. Unpub. LEXIS 1450 (App. Div. June 24, 2016))

This case highlights the need to dispose of a prior Will when executing a new one. The law does provide for what are known as “After Discovered Wills” to be admitted to probate. However, there are two costs in doing so. First, an after discovered Will can only be admitted by a probate court action which, even if uncontested, is costly. Second, although it may not have happened in this matter, there is a substantial risk that part or all of the estate assets could be distributed to the wrong beneficiaries and in the wrong proportions, or both. If the assets have been distributed, it may be difficult, if not impossible, to collect from those who have received distributions to which they are not entitled.

Many assert that old Wills should be kept in the event a new Will is set aside in a Will contest. However, in this author’s opinion, that does not make much sense, as a new Will should not be executed if it seems clear that it should not be valid to begin with. Moreover, the reality is that the need to admit an after discovered Will can often be untimely. Thus, old Wills should be destroyed or, at the very least, marked with some notation that they have been superseded by a new Will.

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Thomas D. Begley, III

About the Author

Thomas D. Begley, III is the co-chair of the Trusts & Estates Group at Capehart Scatchard. He is a Certified Elder Law Attorney (CELA) who earned both his undergraduate and law degrees from Georgetown University, located in Washington, D.C. He concentrates his practice in the areas of estate and tax planning, estate administration, small business representation, elder law, and probate litigation. He is an accomplished author and lecturer who has frequently spoken on behalf of the National Academy of Elder Law Attorneys and the New Jersey Institute for Continuing Legal Education as well as other professional organizations. He has been named a “Super Lawyer” as voted by his peers and facilitated by New Jersey Monthly in the area of Trusts and Estate Litigation on numerous occasions. He has attained the prestigious AV rating by Martindale-Hubbell.

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