Appellate Division Affirms Burlington County Decision: Handwritten Document Constitutes A Valid Will

In the Matter of the Estate of Alice M. Malsberger, deceased, No. A-2751-15T3

(N.J. Super. Ct. App. Div. July 14, 2017).

This is an unpublished Appellate Division decision arising out of Burlington County.

The material facts were not in dispute.  Alice Malsberger (“Alice”) died May 26, 2015.  Following Alice’s death, plaintiff Patricia White (“Patricia”), a niece, found a handwritten document among Alice’s personal papers in Alice’s kitchen.  The handwritten document stated:

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 a mausoleum.  I wish my estate be sold and divide(d) in

3 and 1/3 granted to Father Emmanuel, 1/3 to Patricia White, and

1/3 to Dionysis and Anna Nicholaou.  I want Pat White to be executrix.

I intend to see a lawyer and to validate everything.

Alice’s sole intestate heir was Robert Rich (“Robert”).  In October, 2015 Patricia filed a verified complaint seeking to admit the document to probate.  Robert died in December, 2015.  Robert’s estate filed an answer in February, 2016.

Judge Dow in Burlington County admitted the will to probate, finding that Alice intended the handwritten document to constitute her will and “simply intended to see a lawyer for any procedural formalities which were lacking.”  Judge Dow found that plaintiff had met her burden of establishing by clear and convincing evidence that the will was written by Alice and was intended to constitute a valid last will.

Robert’s estate appealed, arguing (i) the statement at the beginning of the document, “I’m Alice Malsberger”, is not a signature and (ii) the final sentence of the document, “I intend to see a lawyer and to validate everything” establishes that the document is not a will, but a series of notes written by Alice in anticipation of having a lawyer prepare a will.

The first argument was quickly disposed of by referenced to In re Estate of Siegel, 214 N.J. Super. 586, 592 (App. Div. 1987).  Siegel was a 1987 Appellate Division opinion arising out of Hunterdon County.  The “signature” facts in Siegel were essentially the same as in Malsberger, (i) a handwritten document was found in decedent’s home, (ii) the parties stipulated that the document was written by the decedent and  (iii) the document did not contain a signature at the end but began with a title sentence including the decedent’s name.  In Siegel the first paragraph again introduced the decedent and stated his name.  The Appellate Division in Siegel concluded, “… testator’s writing of his name in the prefatory paragraphs of the will was intended as his signature” id. at 592.  Judge Dow made the same finding in Malsberger.

The Appellate Division also rejected the argument that the final sentence of the document precluded a finding of testamentary intent.  The Appellate Division stated, “This contention overlooks the plain meaning of Alice’s written words.  Alice clearly stated her testamentary intent by providing precise instructions of a testamentary nature, including burial instructions, the appointment of an executor, and the liquidation and division of her estate to her designated beneficiaries.”

The Appellate Division concluded, “We agree with Judge Dow that Alice’s ‘comments’, taken at face value, simply indicate an intention to visit a lawyer to finalize a document with any required formalities and does not invalidate Alice’s present intention that the proposed will constitute a valid will.”

The Appellate Division affirmed.