Unsigned, Handwritten Note Admitted To Probate As Last Will and Testament

Following Alice Malsberger’s death, her niece by marriage, Patricia White (the plaintiff in this lawsuit) found a handwritten document in Alice’s kitchen. It read:

I’m Alice Malsberger – I wish to be cremated upon my death – along with my husband Joe – our ashes placed in a similar (illegible) and placed in mausoleum. I wish my estate be sold & divide in three and 1/3 granted to Fr. Emmanuel, one third to Patricia White, and one third to Dionysis & Anna Nicholaou. I want Pat White to be executrix. I intend to see a lawyer & to validate everything.

There was no signature at the end of the document.

Plaintiff filed a complaint seeking to admit the purported document into probate as Alice’s Last Will and Testament. Alice’s next of kin, Robert Rich, died shortly after the complaint was filed. His executor answered the complaint, disputing that the document constituted Alice’s will.

The parties agreed that the handwriting on the purported will was Alice’s, and that no discovery was required. Consequently, the probate judge rendered judgment on the pleadings, admitting the purported will to probate. In her opinion, the judge concluded that Alice had intended the handwritten document to constitute a will, and that she had simply intended to see a lawyer “for any procedural formalities which were lacking.”

Robert Rich’s estate filed an appeal, asserting that the probate judge had ignored and misinterpreted the plain text of the document.

On appeal, the Appellate Division found that, because the parties had agreed that there was no genuine issue of material fact, the matter was properly disposed of by summary judgment.

The appellate court rejected the appellant’s claim that the purported will was invalid because it did not contain Alice’s signature at the end of the document. The court found that a testator writing his or her name at the beginning of a document would suffice, and that Alice “intended the opening line, ‘I am Alice Malsberger,’ to serve as a signature to the document.” The court further found that, based upon In re Macool, 416 N.J. Super. 298 (App. Div. 2010), “a writing need not be signed by the testator in order to be admitted to probate.”

The Appellate Division next rejected the appellant’s claim that Alice had not intended the document to constitute her will, but merely “the basis for a subsequent will that would be ‘validated’ by a lawyer.” It agreed with the probate judge that the final sentence of the document merely indicated an intention to see a lawyer to finalize the document with any required legal formalities. The court held that that sentence did not invalidate her present intention that the document constitute her will.

Because it concluded that the document embodied Alice’s testamentary intent, the Appellate Division affirmed the probate court: the document was properly admitted to probate.

Copy of In re Estate of Malsberger can be found here – In re Estate of Malsberger

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