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In re Prob. of Will & Codicil of Macool - 3 A.3d 1258 (Super. Ct. App. Div. 2010)


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: (1) the decedent actually reviewed the document in question; and (2) 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.


At the decedent's behest, her attorney prepared a rough draft of a will. The decedent died before seeing the draft will, which differed in some respects from her written instructions to her attorney, which were themselves unclear. The decedent's meeting with her attorney regarding the draft will took place within an hour before she died. The decedent's niece filed suit to invalidate the decedent's will, which was executed in 1995 and had a codicil from 2007, and to admit into probate the 2008 draft will the decedent had not signed instead. The decedent's stepchildren opposed the suit. The trial court declined to admit the draft will into probate but granted the niece's application for counsel fees under R.4:42-9(3). All parties appealed.


Should the decedent's draft will be admitted to probate?




The appellate court held that the trial court properly declined to admit into probate a will that was not reviewed by the decedent before her demise. The appellate court rejected, however, that part of the trial court's ruling that construed N.J.S.A. § 3B:3-3 as requiring the writing offered as a will under § 3B:3-3 to bear in some form the signature of the testator as a prerequisite to its admission to probate; such an interpretation would defeat the remedial purpose of § 3B:3-3. On the question of counsel fees, the trial court properly granted plaintiff's application for fees under R. 4:42-9(3) as she had "reasonable cause" for contesting the prior will based on the lack of appellate authority concerning § 3B:3-3. The amount of fees awarded had to be reconsidered, because the trial court's analysis included policy questions that were not relevant or appropriate considerations in determining the amount of fees plaintiff was entitled to receive.

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