[T]he draft will should be admitted because there is clear and convincing evidence that decedent intended this document to constitute her will, or alternatively, a partial revocation of her prior will.
In re Probate of Will and Codicil of Macool
Decedent went to her lawyer's office to change her will and handed him a handwritten note with the changes she wanted. The lawyer drafted a new will, but decedent died within an hour of leaving the office without ever seeing it, let alone signing it.
The lawyer's version did not include one of her requests because the lawyer thought it unnecessary and against his custom and implemented her request to keep the house in the family by just stating they were responsible to try to do so as long as possible.
Trial court rejected the draft will and found that the note established, by clear and convincing evidence, that decedent intended to include two of the people named in the note.
Was the draft will valid?
- Page 187
We hold that for a writing to be admitted into probate as a will under N.J.S.A. 3B:3–3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that:
- the decedent actually reviewed the document in question; and
- thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent's final testamentary wishes.
- Page 187
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:
- the decedent's will;
- a partial or complete revocation of the will;
- an addition to or an alteration of the will; or
- a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
Both traditional and holographic wills require signatures. The only relief this statute could give is excusing the signing of the document.
Decedent clearly did not review the draft will and thus cannot be valid.
Had decedent seen the will and assented to it, the fact that she did not sign it would not have stopped it from being valid.
See Also:Harmless Error