Once An Objection Is Filed To The Probate Of An Unwitnessed Will Revision, A Trial Must Be Conducted To Determine The Decedent's Intent

The decedent, William Walb Jr., executed a will in January 2003, in compliance with the statutory requirements regarding execution set forth in N.J.S.A. 3B:3-2a. The decedent was a widower at the time he executed the Will and had no children. In his will, the decedent left approximately 81% of his substantial estate assets to Albright College in Reading, Pa. The will also stated that the decedent would later issue instructions for disposing of his personal property among friends and relatives by preparing a list which “will be informal in form, and may be in my own handwriting.”

In 2007, Walb made two inter vivos gifts to Albright College totaling $238,983. Then, in February 2008, he signed a document entitled “Addendum to Last Will and Testament of William W. Walb Jr.” By the time the Addendum was signed, the decedent was ill and blind, so he dictated the contents to his long-time friend and attorney-in-fact, Shirley Waters. Though he signed the document, it was not witnessed as required by N.J.S.A. 3B:3-2a.

The Addendum bequeathed certain personal property to Thomas Walb, the decedent’s nephew, and Shirley Waters. It also bequeathed the decedent’s home and all of its contents to Leighton and Jennifer Bryan, his long-time friends and neighbors, and made the following distributions of his net estate: (1) 25% to Waters; (2) 5% to Susanna Ndisiro, his caretaker; and (3) 3% to Kathy Van Sciver, a nurse who cared for his wife before she died. With this distribution change, Albright College would receive approximately 60% of the net estate.

Walb died in September 2008, and his will was probated. His executor, on discovering the Addendum, filed an order to show cause to decide whether it should be admitted to probate. The Bryans and Waters submitted certifications arguing for the admission of the Addendum to probate.

On the return date of the order to show case, the trial judge ruled on the papers without trial that the Addendum didn’t pass muster under N.J.S.A. 3B:3-16, which says that wills can be altered only by following the statutory requirements for will execution. He also concluded that Waters and the Bryans failed to present clear and convincing evidence that Walb intended the Addendum to constitute an addition to or alteration of his will. As a result, the trial judge invalidated and held unenforceable the Addendum to the extent that it purported to dispose of any estate assets other than Walb’s tangible personal property.

Waters and the Bryans appealed, and the Appellate Division reversed. The appeals court noted that, if a party objects to the admission of a purported will or codicil on the return date of an order to show cause, rather than render judgment a trial court should hold a trial and “hear the evidence as to those matters which may be genuinely in issue.” Since Waters and the Bryans “sufficiently objected to the matter’s summary disposition by expressing the need for a plenary hearing to determine the decedent’s intent,” the appeals court ruled that the trial judge should have conducted a trial to determine whether Walb, in dictating and signing the Addendum, intended to alter his will.

The case is annexed here – Matter of the Estate of William W. Walb, Jr.