Overcoming Presumption of Revocation, Unsigned Will Admitted for Probate

In the Matter of the Estate of Alfred Iapalucci, No. A-3670-20 (N.J. Super. Ct. App. Div. Oct. 5, 2022)

The decedent died in 2020.  In 2012, he executed a will (“Will”), healthcare power of attorney, and general power of attorney.  He left the meeting with original powers of attorney, the sole original Will, as well as an unsigned copy of the Will.  The decedent was accompanied to the meeting by his son, Alfred G. Iapalucci, Jr. (“Fred”).  The Will named Fred as executor and the decedent’s wife, Cindy, as the successor executor.  The Will also bequeathed all real property and the decedent’s mobile home park business to Fred, and to Cindy if Fred predeceased the decedent.

The case centered on the fact that the original Will could not be located at the decedent’s death.  The decedent’s other four children (the “Siblings”) filed a verified complaint to have the court declare that he died intestate.  Fred obtained a copy of the Will from the scrivener and filed his own complaint on the same day as the Siblings, to have the copy of the Will admitted to probate.  None of the Siblings denied that the Will was validly executed or that the decedent had the requisite mental capacity to execute a will.

The focus was whether the presumption of revocation of the Will resulted in an intestacy, since the original could not be located.

The Appellate Division affirmed the trial court’s ruling that Fred overcame the presumption that the Will was revoked.  This presumption was overcome even though the decedent was the last person to be seen with the Will before his passing.  In other words, the absence of the Will did not mean the decedent intended to revoke or destroy the document.  Fred provided ample evidence to support the finding that the Will was kept in a lockbox with the decedent’s powers of attorney that he executed at the same time as the Will.  Fred also showed that all of the decedent’s children had access to the lockbox and could have removed the Will at any time.

Moreover, the Appellate Division did not require a showing that the decedent had “exclusive possession” of the Will to create the presumption of revocation, as the trial court did.

Additionally, the Appellate Division considered more recent legislation that seeks to permit technically deficient wills to be admitted to probate by allowing the proponent of the deficient will to establish that the decedent intended the document to serve as his will through clear and convincing evidence.

Under either analysis, the Appellate Division was convinced that the decedent intended this document to be his Will and that it should be admitted for probate.