The Lawletter Vol 35 No 8, May 27, 2011
The requirements for the execution of a will or codicil are normally regarded as demanding strict compliance. The requirements under New Jersey law are set forth in the New Jersey Statutes in a section entitled "Requirements for will; handwritten will; evidence establishing intent":
a. Except as provided in subsection b. and in N.J.S.3B:3‑3, a will shall be:
(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
c. Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.
N.J. Stat. Ann. § 3B:3‑2.
This provision is similar to § 2‑502 of the Uniform Probate Code ("U.P.C."). The strict application of these requirements is exemplified by the following statement in In re Amsden's Will, 191 A. 801 (N.J. 1937): "Each and every one of these requisites must exist. They are not in the alternative." Id. at 802.
In 1982, however, the New Jersey State Legislature relaxed the strict compliance rule by adopting § 3B:3‑3, "Noncompliant execution; clear and convincing evidence of intent":
Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3‑2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3‑2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
N.J. Stat. Ann. § 3B:3-3. This provision corresponds to U.P.C. § 2‑503, "Harmless Error."
The case of In re Probate of Will & Codicil of Macool, 3 A.3d 1258 (N.J. Super. Ct. App. Div. 2010), gives some idea of how far courts will go in relaxing the formal will requirements. On September 13, 1995, Attorney Kenneth Calloway drafted wills for both Louise Macool and her husband, Elmer. On that same day, Louise executed her will, naming Elmer as the sole beneficiary of her entire estate and also naming her seven stepchildren, step‑granddaughter, Theresa Stefanowicz, and step‑great‑grandson, Alexander Stefanowicz, as contingent residuary beneficiaries.
Elmer Macool died on April 26, 2008, and on May 21, 2008, Louise presented Attorney Calloway with a handwritten note setting forth her intended changes in the will. Louise added her nieces, Mary Rescigno and LeNora Distasio, to her seven stepchildren and Theresa Stefanowicz and Alexander Stefanowicz as residuary beneficiaries. She also stated her desire to keep the house "in the family Macool" and set forth the names of three of the stepchildren as if she intended to leave them specific bequests, but she did not go beyond the listing of their names.
According to Calloway, he discussed the matter with Louise, and, using the handwritten notes as a guide, he dictated the revised will in Louise's presence. Calloway's secretary typed a draft version of the revised will, writing the word "Rough" on the top left corner of the document. Calloway indicated that "rough" signified that he had not reviewed it to see if it conformed with his dictation.
Calloway had expected Louise to make an appointment with him to execute the will, but she died approximately one hour after leaving Calloway's office following her presentation of her notes and Calloway's dictation.
The matter reached the trial court following Mary Rescigno's filing for probate of the draft will that Louise had neither signed nor read. Plaintiff Rescigno's primary argument was based on § 3B:3-3, the relaxation provision. The trial court found that, although
plaintiff had established, by clear and convincing evidence, "that as of the moment Ms. Macool met with Mr. Calloway it was her intention to have her testamentary plan altered to include Ms. Rescigno and Ms. Distasio[,]" . . . [there was] insufficient evidence from which to conclude that decedent intended the particular draft document that Calloway prepared to be her will.
Id. at 1263. The trial court construed § 3B:3-3 as still requiring that a document to be treated as a will under its flexible standard must "'have been executed or signed in some fashion by the testator.'" Id.
On the appeal, the plaintiff argued that the decedent had clearly expressed her testamentary intent through her handwritten notes, which formed the basis for the draft. The plaintiff also contended that the dictation of the draft in the decedent's presence was a sufficient substitute for her reading the document and that the trial court had erred in requiring that the document be executed or otherwise signed.
In upholding the trial court's rejection of the draft as the decedent's will, the appellate court drew a distinction between evidence of the decedent's general disposition to change her testamentary scheme and evidence establishing by clear and convincing evidence that the decedent intended the draft will prepared by Calloway to constitute her binding and final will. The appellate court found that the evidentiary standard was not met, because the decedent's untimely death prevented her from reviewing the draft and then conferring with Calloway to clear up any ambiguity, modify any provision, or express her final assent to the "rough" draft. The court also found that the vague statement as to the house and unfinished provisions as to three of the stepchildren showed that the draft was a work in progress and was not intended as a final revised will.
The court summarized its holding:
We hold that 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.
Id. at 1265.
The court additionally voiced its opinion that, contrary to the trial court's position on the question, § 3B:3-3 does not require that a document to be treated as a will be signed. The court reasoned that had the decedent in the case before it been able to read the draft and thereafter express her assent to its content, the trial court's misgivings as to the document's lack of a signature would have been needlessly formalistic and contrary to the remedial purpose of § 3B:3-3.
On the basis of the Macool case, it can be concluded that a statute such as § 3B:3-3 indeed relaxes the formal requirements for executing a will but does not relax the basic requirement that the evidence establish that the decedent intended the very document in question, and not a later, more complete, and unambiguous document, to serve as his or her last will.