In re Probate of Will and Codicil of Macool
3 A.3d 1258 (2010), 416 N.J. Super. 298 (2010)
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Rule of Law:
For a writing to be admitted to probate as a will under N.J.S.A. 3B:3-3, the proponent must prove by clear and convincing evidence that the decedent reviewed the document and gave their final assent to it.
Facts:
- Louise Macool executed a will in 1995, primarily naming her husband Elmer Macool as the beneficiary and her seven step-children as contingent beneficiaries.
- In 2007, she executed a codicil changing the contingent co-executors.
- After her husband died in April 2008, Louise decided to change her will.
- On May 21, 2008, Louise Macool met with her attorney, Kenneth Calloway, and gave him a handwritten note outlining her desired changes, which included adding her nieces Mary Rescigno and LeNora Distasio as beneficiaries.
- While Louise was still in his office, Calloway dictated a new will based on the note, and his secretary later typed a document that Calloway marked as a 'Rough' draft.
- The draft differed from the handwritten note, notably by omitting certain contingent beneficiaries and altering a provision about keeping a house in the family.
- Louise left the attorney's office with the intention of returning at a later time to review the draft will.
- Approximately one hour after leaving the office, Louise Macool died, never having seen, read, or signed the draft will.
Procedural Posture:
- Plaintiff Mary Rescigno filed an action in the New Jersey Superior Court, Chancery Division (trial court), seeking to invalidate Louise Macool's 1995 will and 2007 codicil.
- Rescigno petitioned the trial court to admit a 2008 draft will into probate.
- After a one-day bench trial, the Chancery Division judge denied the application to admit the 2008 draft will.
- The trial court found that although Macool intended to change her will, she did not intend the specific draft to be her will, and also held that the statute required a signature.
- The trial court granted Rescigno's application for attorney's fees to be paid from the estate.
- Rescigno (as appellant) appealed the trial court's denial to probate the draft will to the Superior Court of New Jersey, Appellate Division.
- Defendants Muriel Carolfi and Michael Macool (as appellants in a consolidated action) appealed the award of attorney's fees.
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Issue:
Does a draft will that a decedent has not reviewed or assented to constitute the decedent's will under N.J.S.A. 3B:3-3, which permits the probate of a writing intended as a will even if not formally executed?
Opinions:
Majority - Fuentes, J.A.D.
No. For a writing to be admitted to probate under N.J.S.A. 3B:3-3, the proponent must establish by clear and convincing evidence that the decedent intended that specific document to constitute their will, which requires proof that the decedent actually reviewed the document and thereafter gave their final assent to it. While the evidence clearly showed Louise Macool's general intent to change her testamentary plan, there was no evidence she intended the specific 'rough' draft to be her final will because she never had the opportunity to review it. The court found it could only speculate whether the draft, with its discrepancies from her notes, would have met with her approval. The court also held that, contrary to the trial court's reasoning, N.J.S.A. 3B:3-3 does not require a testator's signature, as such a requirement would undermine the statute's purpose of relaxing formal execution requirements.
Analysis:
This case provides the first appellate interpretation of New Jersey's probate 'harmless error' statute, N.J.S.A. 3B:3-3. It establishes a critical two-part test requiring both review and final assent, which sets a clear boundary on the statute's application. The decision balances the legislative intent to honor a testator's wishes against the danger of admitting a document that was merely a preliminary draft. By clarifying that a signature is not an absolute prerequisite but that review and assent are, the court provides a workable framework for lower courts to apply when confronted with writings that do not meet formal testamentary requirements.
