Decedent’s Request to Add Unborn Future Grandchild as Beneficiary Destroys “Assent” Requirement Needed to Admit Will  

The decedent’s daughter had been disinherited under her mother’s 2013 Last Will and Testament. Following the decedent’s death, the daughter sought to admit a 2016 draft will, in which she was a beneficiary.

The decedent had contacted her attorney beginning in 2015 regarding changes to her 2013 will, and advised the attorney that she did not want her old will to be valid. By the time the attorney prepared the 2016 draft will and presented it to the decedent, she was in hospice care. She did not sign the will at that point because she wanted to add a provision for an unborn future grandchild. Despite repeated requests from the decedent to make this change, the attorney failed to do so before the decedent’s death.

The daughter claimed that the 2016 draft will was valid because her mother had verbally assented to the contents of the document. When her complaint was dismissed, she appealed.

The Appellate Division affirmed the dismissal. It noted that, for the document to be admitted to probate as a holographic will, the signature and material portions of the will must be in the testator’s handwriting. A document can also be admitted upon clear and convincing evidence that (1) the decedent actually reviewed the document and (2) thereafter gave his/her final assent to it. N.J.S.A. 3B:3-2. Here, the decedent agreed to the contents of the 2016 draft, but requested the addition of an unborn grandchild as a beneficiary. This request to modify the draft will destroyed the “final assent” requirement of the statute.

The appeals court also rejected the daughter’s claim that the 2013 will had been revoked by the decedent. When the 2013 will was executed, the attorney retained the original and did not give the decedent a copy. Because her mother did not have the will and was physically infirm, the daughter claimed that she verbally revoked the will when she told her lawyer she did not want her 2013 will to be in effect. The court ruled that verbal revocation, without an accompanying “revocatory act” (such as burning, tearing, canceling, or destroying the will) is insufficient. The court noted that the decedent had not instructed anyone to undertake a revocatory act on her behalf, and she did not execute a subsequent will revoking it.

The daughter also claimed that the decedent’s signatures contained in the 2013 will were “substantially dissimilar,” and that this, along with the lawyer’s misrepresentation that the 2016 will would be executed as the decedent wished, constituted fraud. The court disagreed. It noted that the daughter had failed to retain a handwriting expert, and that, even if the lawyer had made a misrepresentation, a claim of fraud required that the misrepresentation be regarding a past or present fact. Here, if anything, the lawyer had misrepresented a future intent. Moreover, the daughter did not contend that additional discovery would reveal additional support for these claims.

The daughter had asserted a claim of undue influence against the lawyer, essentially contending that the lawyer refused to honor the decedent’s death-bed direction because he wanted to preserve a certain charitable bequest that had been contained in the 2013 will.  Although the trial court had dismissed the claim with prejudice, the appeals court ruled that the dismissal would be without prejudice. The Appellate Division noted that, because he was the testator’s lawyer, a “confidential relationship” had existed, and therefore the daughter had the right to amend the complaint to properly plead undue influence.

Finally, the daughter appealed the denial of her application for attorney fees, which the trial court had denied as time-barred.  The appeals court noted that the daughter was represented by an attorney and, although other parties had timely filed fee applications, the daughter’s application was made more than 20 days after the case was dismissed. Moreover, fee awards are generally made where litigation would benefit the assets of the estate; here, such an award would only benefit the daughter’s personal interests. The fee application dismissal was affirmed.

A copy of In re Estate of Jenkins can be found here – In re Estate of Jenkins

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