Admitting an Unsigned Will to New Jersey Probate Court

In the Matter of the Estate of Albertha Blackwell

2011 N.J. Super. Unpub. LEXIS 1432

Often, people unfortunately pass without completing a will.

This can often have devastating effects on his/her estate and the loved ones s/he leaves behind.

The laws regarding admitting wills to New Jersey probate courts is very rigid.  Most often, a will is not admitted to New Jersey probate court if it is not entirely complete and executed in conformity with the laws.

The rigidity of these laws fail to recognize a quite common reality: people often try to put their wishes into a will or a document s/he hopes is a will but, often, do not get the chance to finish it before s/he dies.

Below is a summary of a recent decision showing that the courts are moving away from this rigidity and may be starting to recognize the realities of most people’s estate planning.

Issue

Whether a document purported to be the Last Will and Testament of Albertha Blackwell may be admitted to a New Jersey probate court?

Hold

The document is the last will and testament of Albertha Blackwell and is admitted to probate.

Facts

  • Albertha died at 76 with 6 adult children, 7 adult grandchildren and 1 minor grandchild.
  • Two of the decedent’s daughters filed a caveat to the probate of any Will. Defendant
  • The Plaintiff filed an order to show cause and verified complaint seeking to probate an undated document as the Last Will and Testament of Decedent.
  • Will admitted to probate, despite lack of attestation because there was no evidence that the signature was not decedent’s.
  • On appeal, the court reversed saying the will did not strictly comply with N.J.S.A. 3B:3-2.
  • The document had 5 pages each signed by Albertha and on the 5th page a second signature saying the will is 6 pages and that she is signing freely and voluntarily, she is at least 18 and of sound mind. The will is not dated and there is not attestation clause.
  • Appended is the 6th page with language similar to a self-proving affidavit where 2 women signed that each witnessed Albetha sign, she is at least 18, did it willingly etc. The page is notarized. The acknowledgment is not dated.

Rule

A will does not need to strictly comply with NJSA 3B:3-2 so long as there is clear and convincing evidence has established that the Will is both in substantial compliance with NJSA 3B:3-2, and was intended to constitute the parties will, pursuant to NJSA 3B:3-3.

Analysis

The will is not in strict compliance with NJSA 3B:3-2 but the Plaintiff’s have proven, by clear and convincing evidence that the will substantially complied with the statutory requirement. It was proven Albertha signed it voluntarily; that the witnesses signed the self-proving affidavit and witnessed her signature. This is not strict compliance with NJSA 3B:3-2. Further, defendant did not put any evidence forth that would show that the signature was fake. Only her own testimony, no expert. Nothing in the statute requires a date. Thus finding no date to be a clerical error/harmless oversight. Trial testimony found the will to be signed March 1, 2007.

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