The decedent, Dr. Evan Merritt London, was single with no children. He executed a number of wills and trusts over the years, with the trusts as the primary vehicle for disposing of his estate. He would make periodic trust revisions in which his beneficiaries (including his niece and nephew, his best friend, and various charities) and/or allocations would change.

In 2013, while a resident of Brandywine assisted living facility, the decedent met with his financial advisor about changing his estate plan. They marked up his existing 2012 trust and the financial advisor faxed the markups to the decedent’s estate attorney, who then met with the decedent. The attorney and the decedent went over the 2012 trust paragraph by paragraph, and the attorney made notations of the changes on a copy of the 2012 trust. Those changes included that his niece and nephew receive the biggest portion of his estate. The attorney testified that he was “absolutely certain” that his notes reflected the changes the decedent requested. The attorney incorporated the changes into a new trust, and hand-delivered an unsigned copy of new trust with a staff member at Brandywine on May 22, 2013.

The attorney testified that he then had a conversation with the decedent that day, in which the decedent said he received the document and “was going to look at it.” According to the attorney, he did not know whether the decedent was going to sign the new trust; he expected the decedent to review it and let him know if he approved of it, at which point a signing ceremony would be scheduled. The financial advisor testified that the decedent also called him May 22, and asked that he come to the facility to review the document with him. The financial advisor obtained a copy of the new trust from the attorney, and spoke to the decedent again. The financial advisor told the decedent that he was surprised about the trust revisions, based on their conversations over the years, but that the decedent could leave his money to whoever he wished, and that there was no need for the advisor to come to the facility and review it with the decedent. However, the decedent indicated again that he wanted the financial advisor to come review the trust with him, and pleaded with him to do so as soon as possible. The financial advisor later testified that he knew the decedent had not reviewed the new trust, but knew what was in it and seemed apprehensive about it. According to the nephew, the decedent told him that afternoon that he was signing a new “will.”

The next day, on May 23, the decedent fell ill, and was taken by his friend and his caretaker to the emergency room. According to both his friend and his caretaker, on the way to the hospital, the decedent asked them to return to the facility so he could sign the trust, but they refused because he needed urgent care. After the decedent arrived at the emergency room, he continued to insist on signing the document. The decedent told his friend to retrieve the document from his desk at Brandywine; the friend did so, but by the time he returned to the hospital with the trust the following day, the decedent’s condition had deteriorated to the point that he could no longer sign.

The decedent’s niece and nephew filed litigation. Count one of their complaint sought a declaration that the new (unsigned) trust was valid and enforceable. The respondents moved for summary judgment and, following oral argument, the motion judge dismissed this count of the complaint. On appeal, the Appellate Division affirmed dismissal of this count. The Appellate Division noted that, if an instrument such as a trust is “clearly testamentary in nature,” it must be executed with the formal requirements set forth in the statute of wills, N.J.S.A. 3B:3-1 to -49, and with the required testamentary intent. Therefore, they considered the admissibility of the trust based on these statutory requirements. If a document is not executed in accordance with the normal requirements of N.J.S.A. 3B:3-2, it still may be admitted to probate pursuant to N.J.S.A. 3B:3-3 if the proponent,

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….

According to the In re Macool case, for a writing to be admitted under N.J.S.A. 3B:3-3, the proponent must prove, 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.

Thus, although the writing need not be signed by the decedent in order for it to be admitted to probate, the decedent must have been able to read the document and thereafter assent to its contents. The Appellate Division noted that, the greater the departure from the formal statutory requirements, the more difficult it will be to satisfy these requirements.

The court went on to conclude that the decedent’s sitting down and reviewing his proposed changes paragraph by paragraph, and making handwritten notes on the copy of the old trust, did not constitute review or assent: “As in Macool, decedent’s knowledge of the contents does not establish review.” Moreover, his urgent requests that his friend retrieve the document for him to sign does not show that he reviewed the trust or assented to it. Consequently, the trial court’s dismissal of this count was affirmed.

Count two of the petitioners’ complaint addressed his IRAs and bank accounts. At the time of his death, the decedent owned two IRAs. An IRA beneficiary form from October 2012 (the same time period as his last executed trust), did not list account numbers but indicated, by attachment, that charities were to be the beneficiaries. The decedent later opened a checking account and brokerage account, both payable on death (“POD”) to his long-time friend. The bank then linked the checking account to one of the IRAs, for reasons that are unclear. Subsequent bank statements included a summary page labeled with the POD designation to the friend; however, the individual statements contained therein listed only the checking account as a POD account. The trial court found, and the Appellate Division agreed, that the POD designation listed on the bank statements did not alter the IRA beneficiary designation, and that the lack of account numbers on the beneficiary designation form did not affect the validity of those beneficiary designations.

A copy of In re Trust of London can be found here – In the Matter of the Trust of Dr. Merritt Evan London

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