In New Jersey, a document may be accepted for probate as a will in a number of ways. First, under the formal requirements of N.J.S.A. 3B:3-2(a), a traditional 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.
Second, under the “holographic will” requirements of N.J.S.A. 3B:3-2(b),
[a] will that does not comply with [the above-referenced formal requirements of] 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.
Third, if the document does not comply with either of the above two execution requirements, it still may be a valid will in accordance with N.J.S.A. 3B:3-3:
Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.A. 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.
In the first published opinion in New Jersey interpreting the provision of this third statutory provision, N.J.S.A. 3B:3-3, the Appellate Division in In re Macool concluded that, for a writing to be admitted as a will under that statute, the proponent must establish by clear and convincing evidence that (1) the decedent actually reviewed the document in question and (2) thereafter gave his or her final assent to it. ___ N.J. Super. ___ (App. Div. 2010), Docket Nos. A-4697-08T2, A-4734-08T2 (N.J. Super. App. Div. Sept. 16, 2010). However, the writing need not be signed by the testator.
In Macool, the decedent, Louise Macool, had a meeting with Kenneth Calloway, Esq., the attorney who had drafted her prior will and codicil, for purposes of changing her will. During that meeting, she gave her attorney a hand-written note outlining her testamentary wishes. She discussed her wishes with the attorney, who dictated the entire will in the presence of Mrs. Macool. Mrs. Macool then left the office, intending to return to sign the will after her attorney had reviewed it. However, she died an hour after their meeting.
Shortly after the meeting, Mr. Calloway’s secretary had typed a draft version of the will, with the handwritten word “Rough” on the top corner of the document. The court noted that the rough draft “substantially reflected” Mrs. Macool’s handwritten notes. (Slip op. at 5).
The plaintiff, a beneficiary under the draft will, brought an action seeking to invalidate Mrs. Macool’s prior will and codicil, and to admit into probate the draft will. Plaintiff relied upon N.J.S.A. 3B:3-3 (quoted above), which provides:
… [a] document or writing is treated as if it had been executed in compliance with N.J.S.A. 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.
The trial court concluded that, although plaintiff had clearly and convincingly proven that Mrs. Macool intended to alter her testamentary plan to include the plaintiff, there was insufficient evidence that she intended the particular draft document in issue to be her will. (Slip op. at 8).
The Appellate Division agreed.
Before addressing the draft will, the appellate court distinguished the handwritten notes that Mrs. Macool had given to her lawyer from a “holographic will.” Again, pursuant to N.J.S.A. 3B:3-2(b),
[a] will that does not comply with [the formal requirements of a will] 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.
“Stated differently, a so-called holographic will must have all material testamentary provision in the hand writing of the testator and must also be signed by the testator.” (Slip op. at 10-11). The appellate court recognized that Mrs. Macool’s handwritten notes “arguably meet the first requirement” of N.J.S.A. 3B:3-2(b); however, because Mrs. Macool did not sign her handwritten note, the document failed to meet the second requirement of the statute, and thus did not qualify as a holographic will. (Slip op. at 11).
Moving to the requirements of N.J.S.A. 3B:3-3, the appellate court drew a distinction “between evidence showing decedent’s general disposition to alter her testamentary plans and evidence establishing, by clear and convincing evidence, that decedent intended the draft will prepared by Calloway to constitute her binding and final will.” It agreed with the trial court that, although it was clearly and convincingly established that Mrs. Macool intended to change her testamentary plan to include the plaintiff, the plaintiff failed to establish clearly and convincingly that Mrs. Macool intended the “rough draft” will prepared by Mr. Calloway to be her will. (Slip op. at 11). As the court continued, “this document was a work in progress, subject to reasonable revisions and fine tuning.” (Id. at 12). It concluded that “we have no way of knowing” whether Mrs. Macool would have approved of Mr. Calloway’s approach to the interpretation of her wishes, as she expressed unclearly in her notes: “it is precisely this lack of clarity that renders [certain provisions’] inclusion in the draft will problematic.” (Id. at 12).
The Appellate Division concluded that, for a writing to be admitted to probate under N.J.S.A. 3B:3-3, it must be clearly and convincingly established “that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.” Id. at 13. It stressed that, “[a]bsent either one of these two elements, a trial of fact can only speculate as to whether the proposed writing accurately reflects the decedent’s final testamentary wishes.” Id. at 13-14.
However, the appellate court also noted that the trial court had construed N.J.S.A. 3B:3-3 to require that, in order to treat a document as a will under the statute, the document in issue be “executed or signed in some fashion by the testator.” (Slip op. at 8). The Appellate Division disagreed: “we are satisfied that a writing offered under N.J.S.A. 3B:3-3 need not be signed by the testator in order to be admitted to probate.”
With regard to the issue of attorneys’ fees, the Appellate Division affirmed the trial court’s decision to award fees to the plaintiff from the estate (although it remanded for the trial court to reconsider the amount of those fees). (Slip op. at 18). It noted that, pursuant to R. 4:42-9(a)(3), a court may award legal fees “in probate actions,” and that, “[e]xcept in a weak or meretricious case, courts will normally allow counsel fees for both proponent and contestant in a will dispute.” (Slip op. at 18 (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).
In my opinion, the application of the probate statutes in this case leads to a troubling result. Had Mrs. Macool simply signed her handwritten notes, it appears that the court would have accepted those notes under the “holographic will” statutory provision. Instead, Mrs. Macool chose to meet with her estate attorney, had him dictate a draft will in her presence, and arranged to return to sign the new will. Although the court found that plaintiff established by clear and convincing evidence that Mrs. Macool intended to change her estate plan, it could not find that a valid holographic will had been made, because Mrs. Macool’s notes hadn’t been signed, and it could not find that a will was established under N.J.S.A. 3B:3-3, because plaintiff could not prove that Mrs. Macool intended the draft will to be her final will. It seems clear, however, that Mrs. Macool would have preferred the draft will naming the plaintiff, rather than the prior will omitting the plaintiff, admitted to probate, regardless of whether the draft will may have been in need of “fine tuning.”
The case is annexed here – Matter of the Probate of the Alleged Will and Codicil of Louise Macool
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