In the case entitled In the Matter of the Estate of Ronald M. Denner, Superior Court, Chancery Division, Union County, Docket No. 0 – 3474 (Hon. Thomas N. Lyons, J.S.C., February 28, 2006), The Court held the three documents, though unsigned, undated, and neither witnessed nor notarized, may, if properly proven, be admitted to probate as a valid Last Will and Testament.
The decedent, Ronald M. Denner, died in 2005. The decedent’s 1989 will, which was properly signed, dated, witnessed, notarized and met all of the other statutory requirements, was admitted to probate. Thereafter, plaintiff presented three documents to the Court which she asserted should have been admitted to probate in lieu of the 1989 will. All three documents were unsigned, undated, and neither witnessed nor notarized. In response, defendant filed a motion to dismiss plaintiff’s application for failure to state a claim because none of the documents offered by plaintiff as the decedent’s will were signed by the decedent.
The formalities which must be followed to produce a valid will in New Jersey are set forth in N.J.S. 3B:3-2 which provides as follows:
a. Except as provided in subsection b. and in N.J.S. 3B:3-3, a will shall be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.
b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
c. Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.
If the formalities set forth in N.J.S. 3B:3-2 are not followed by a decedent, a document purporting to be a will can still be admitted to probate under N.J.S. 3B:3-3, entitled “writings intended as wills”, which provides as follows:
Although a document or writing added upon a document was not executed in compliance with N.J.S. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
After reviewing the law, the Court denied defendant’s motion and permitted plaintiff’s case to proceed to trial. The Court held that the failure to sign a document purporting to be a will is not a per se bar to its admission to probate. Under N.J.S. 3B:3-3, even the failure to execute a will can be overcome if the proponent of the purported will establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s will. Therefore, the Court ruled, the proponent of the will in this case should be given the opportunity to establish her case through discovery and trial rather than dismissing it on motion.
The case is annexed here – In the Matter of the Estate of Ronald M. Denner
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