Court Admitted Unsigned Will To Probate As A Valid Writing Intended As A Will

The Bergen County Probate Part recently addressed an unopposed application to admit to probate an unsigned document purported to be the Last Will and Testament of decedent William Anton Jr. (“Decedent”).

Decedent died on July 15, 2015.  He was survived by his wife, Mary Ann Anton, with whom he was involved in active divorce proceedings, and his three children:  Lydia Riley; William Anton III; and Douglas Anton.

On June 24, 2015, about 21 days before his death, Decedent met with his attorney, accompanied by his son-in-law, Keith Riley.  Decedent was unsure of the whereabouts of his Will.  His attorney advised Decedent that if he died without a Will, his wife – with whom he was in the middle of divorce proceedings – would inherit his estate.

Decedent asked the attorney to prepare a new Will, leaving one-third (1/3) of his estate each to his daughter Lydia, his son William, and a trust for any children born to his son Douglas.

At the same meeting, Decedent asked the attorney to prepare a Durable Power of Attorney, Proxy Directive, and Instruction Directive, naming his son-in-law Keith as his primary agent for financial and medical matters, with his daughter Lydia as substitute.

On June 25, 2015, the attorney sent Decedent a letter care of Keith, confirming his understanding of the documents to be prepared and setting forth a fee arrangement.  By email to the attorney dated June 30, 2015, Keith advised that Decedent had changed his mind and wanted all three of his children to receive one-third (1/3) of his estate outright, rather than putting into trust a one-third (1/3) share for any children that might be born to his son Douglas.  In addition, Keith advised the attorney that Decedent had decided it would be best if he – the son-in-law – were the sole executor (not Lydia and William III), with Lydia (Keith’s wife) as alternate.

By letter dated June 30, 2015, the attorney forwarded to Decedent, again care of Keith, a draft Will, Durable Power of Attorney, Proxy Directive, and Instruction Directive.  Thereafter, on July 7, 2015, Keith called the attorney’s office and advised that Decedent had reviewed the draft documents, including the Will, and had found that no changes were needed.  He further advised that Decedent was ready to return to the attorney’s office and sign the documents.

An appointment was scheduled for July 15, 2015, at 3 p.m.  Keith so advised Decedent on July 9, 2015.  On July 14, 2015, Decedent called Keith to confirm that the appointment was for July 15 at 3:00 p.m., and that they would meet at a diner beforehand, at 2:30 p.m.  Decedent failed to show up at the diner; he had died at his home earlier that day.

On August 31, 2015, Keith filed a Verified Complaint and Order to Show Cause, seeking to admit to probate the unsigned Will.  No opposition was filed.

While conceding that the document was not signed or handwritten by Decedent, Keith argued that the document should be admitted to probate as a writing intended as a will under N.J.S.A. § 3B:3-3.

The Appellate Division cited its earlier holdings in In re Probate of Alleged Will & Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010), and In re Estate of Ehrlich, 427 N.J. Super. 64, 71-72 (App. Div. 2012), appeal dismissed, 2013 WL 1798027 (N.J. 2013).

The trial court applied the two-part test established in Macool, i.e., that (1) the decedent actually reviewed the document in question; and (2) that the decedent gave his or her final assent to it.

Here, the trial court noted the scrivener’s affidavit attested that the final, execution copy of the Will – never seen by Decedent – was identical to the draft sent to Decedent care of Decedent’s son-in-law.  Also, the son-in-law’s affidavit stated that Decedent reviewed that draft and expressly and without reservation approved of its contents as his final expression of testamentary intent, reportedly saying after reviewing the document:  “Bob [the scrivener] did exactly what I asked him to do” and that “this Will is perfect as written.”

The court noted that no opposition was filed by anyone with an interest in this matter, including Decedent’s wife or any of the three children.  Therefore, nothing in the record was introduced to cast doubt on any of the factual assertions brought before the Court.

As a result, the court admitted the unsigned Will to probate as a valid writing intended as a will.