Can a Beneficiary Witness a Will In New Jersey?

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Yes, a beneficiary of a will is permitted to be a witness to the will under New Jersey law.

New Jersey Requires Two Witnesses To a Will

Under New Jersey law, a will must be witnessed by two witnesses to be valid.  NJ Stat § 3B:3-2(3).  We have written about how to make a valid will in New Jersey here.

The witnesses are required to be “generally competent to be a witness” in order to witness a New Jersey will. NJ Stat § 3B:3-7.

A New Jersey Will Is Not Invalid If Signed By A Beneficiary

A New Jersey will or any provision thereof is not invalid because the will was signed by an interested witness, i.e., someone who benefits under the terms of the will.  This rule is expressly set forth in NJ Stat § 3B:3-8.

This law is different from many other states, where a provision in favor of a beneficiary witness is deemed invalid.

For example, in Illinois, a provision in favor of a beneficiary witness or his spouse is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses.

In Texas, a bequest to a beneficiary witness is also void.

California law creates a presumption that a bequest to a beneficiary is invalid.

Should A Beneficiary Witness A Will In New Jersey?

Just because a beneficiary is expressly allowed to witness a will under New Jersey law, should they?  The answer is probably not.

Using a beneficiary as a witness could make any challenge to the validity of the will on the grounds of undue influence easier, particularly if the beneficiary is a substantial beneficiary under the will.

Indeed, one of the factors generally considered in New Jersey to determine the presence of undue influence is whether or not a beneficiary was present at the execution of the will.  If a beneficiary was a witness to the will, that factor is a given.  The less involvement a beneficiary has in the preparation and execution of a will, the weaker an undue influence challenge to the will becomes.

Most New Jersey probate lawyers will as a matter of practice use disinterested witnesses to fulfill the witness requirements for a valid will.  Using a beneficiary as a witness to a will, though permitted under New Jersey law, simply opens the door to potential problems after the testator’s death.

 

 

 

 

 

General Probate Issues