Formalities of Writing a Will

The following actually occurred. A man’s aunt, a New Hampshire resident, is dying in the hospital. She has decided to leave all of her sizeable estate to her nephew, so she calls him on the phone. The nephew immediately goes to the hospital, armed with a Will. He walks into his aunt’s hospital room and has her sign the Will. He then leaves the room and goes out to the nurse’s station where he gets 2 nurses to sign as witnesses. He then finds a notary who signs the document as the notary. The aunt then dies and there is a Will contest. Will the Will be upheld? The answer is clearly “no” and sadly, the aunt’s dying wishes will not be followed.

  • To write a valid Will in the State of New Hampshire, you must be 18 years of age or be married.
  • You must be sane; that is, you must be capable of reasoning and making decisions.
  • You must be free of insane delusions or from undue influence from others.
  • A New Hampshire last will and testament must be signed by the testator (the name for the person making the Will) or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
  • Most importantly, a New Hampshire last will and testament must be witnessed by 2 or more credible witnesses (who may not receive property under the will). The witnesses must, at the request of the testator and in the testator’s presence, attest to the testator’s signature.
  • A New Hampshire last will and testament must be in writing to be valid.
  • To be a so-called self proving Will, the Will must be notarized and the testator and the witnesses must all swear to/acknowledge the witness in the presence of the notary.

Under certain New Hampshire statutory requirements (soldier in actual military service, or a mariner or seaman when at sea), an oral will disposing of personal property may be recognized. However, the legal requirements for an oral will are specific and need to be strictly followed in order for a court to deem the will valid. A will made outside the State of New Hampshire, if valid according to the laws of the state or country where it was executed, may be proved and allowed in New Hampshire and shall be as effective as it would have been if executed according to the laws of New Hampshire.

There aren’t a lot of formalities to writing and executing a Will, but there are some and they must be followed; otherwise, someone’s actual wishes may be thwarted. Ask the nephew I wrote about. He knows.

R. Peter Decato, Decato Law Firm