Matter of the Estate of : LEIGH CAMERON RANDALL :

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In The Matter of the Estate of : LEIGH CAMERON RANDALL :

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ Decided: February 1, 2011 By: Walter Koprowski, Jr., J.S.C.

: : SUPERIOR COURT OF NEW JERSEY : CHANCERY DIVISION, PROBATE PART : ESSEX COUNTY : DOCKET NO.: ESX-CP-0199-10 :

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

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OPINION

Decedent Leigh Cameron Randall died a resident of Maricopa County, Arizona on July 24, 2006. At the time of her death, she owned real property located at 861 Broad Street, Newark, N.J., in addition to various other assets. She did not execute a formal will. However, plaintiff (one of her 6 first cousins) is seeking to probate a letter allegedly written in July of 1998 as a writing intended as a will. There is no signature on the pages offered for probate. The decedent retained a photocopy of pages 3 and 4 of this letter, and added the following handwritten note in the margin on September 8, 2004: “Note: Sept. 8, 2004 – Everything but Trust, which will be divided between Charles and Janet is to go to Charles, in appreciation for all his help through the years.” In the body of the letter, decedent crossed off “Everything that remains would be divided between you and Janet.” Decedent wrote, “VOID - *note Sept. 8, 2004 correction” next to the cross-out. Plaintiff lost his copy of the letter, but found this amended portion of the letter in a drawer at decedent’s house. The decedent never married and did not have any children. She is survived by 6 first cousins: 2 children of her mother’s brother (Charles Cameron III (Plaintiff) and Janet Cameron) and four children of her father’s brother (Charles Anderson, Janet Anderson, John Anderson, and Sandra Mortimer). She is also survived by three children of the son allegedly adopted by her mother with her second husband: Melissa Moeckel, Mark Moeckel, and Tre Michael Moeckel (adopted).

N.J.S.A. §3B:3-2 requires that a will shall be in writing signed by the testator or by another at the testator’s direction, and signed by two witnesses within a reasonable

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time after witnessing testator’s signature or testator’s acknowledgement of that signature. The admission of a holographic will to probate is governed by N.J.S.A. §3B:3-2(b), which provides that a Will that does not comply with the above requirements nonetheless “is valid as a writing intended as Will, whether or not witnessed, if the signature and material portions of the document are in the testator’s own handwriting.”

In 2004, the NJ Legislature enacted N.J.S.A. §3B:3-3, which provides in pertinent part, “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 [it] if the proponent of the document or writing established 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) and addition to or alteration of the will; or 4) a partial or complete revival of his formerly revoked will or a portion thereof.”

“The clear and convincing evidence standard is not a hollow one, as clear-and- convincing evidence is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the precise facts in issue. New Jersey Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (N.J. 2010) (citing In re Seaman, 133 N.J. 67, 74 (1993). See also In re Purrazzella, 134 N.J. 228, 240 (1993) (defining clear and convincing evidence as "evidence that should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established".

Plaintiff Charles E. Cameron III is a practicing veterinarian who resides in Virginia. He testified in a straight-forward and honest fashion. I find him to be a credible witness in this matter. Leigh Cameron Randall was his cousin as well as a close friend. She was a single woman who lived alone. He and his father before him maintained a relationship with Ms Randall throughout her entire life. After his father became incapacitated in 1991, Dr. Cameron spoke with her about once a month by telephone and received numerous letters. He recalled that she also kept important financial documents for safe-keeping at home as she distrusted financial institutions. He visited her in Arizona in 2002. He gave her general financial advice and helped manage her real property located at 861 Broad Street in Newark, NJ.

He received the 1998 correspondence which is the subject matter of this application. He assumed she had a will and considered the letter to be merely informational as it listed her assets, discussed a testamentary trust and identified him and his sister as beneficiaries. He recalled that Ms. Randall was very concerned about counsel fees based on discussions he had with her over the years. After her death, he went to her home in Arizona and looked for a will. He found the photocopy marked P1 in a bureau which included the original notations in the margin. Dr. Cameron, who received hundreds of letters from Ms. Randall cannot locate the original July 1998 correspondence which was sent to him. Based on his familiarity with her handwriting, he testified that the copy including the margin note was written by her.

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In this case, the proponent of the document offered for probate argues that either the original letter written to Plaintiff or the subsequently added annotation expresses testamentary intent sufficient to overcome the deficiencies in formality. The clear and convincing evidence standard is a very substantial obstacle to Plaintiff’s argument. This Court finds the initial letter, of which an unsigned photocopy of pages 3 and 4 is offered for probate, does not have any testamentary intent as it was originally written. The excerpt of the letter asks for advice, enumerated some assets, and discussed her 861 Broad Street Newark property. It does not meet the clear and convincing evidence standard for testamentary intent required by N.J.S.A. 3B:3-3 as originally drafted.

However, the court is convinced that the handwritten annotation in the margin of the copy of the letter should be given testamentary effect. In adopting N.J.S.A. 3B:3-3, which is taken verbatim from §2-503 of the Uniform Probate Code, the Legislature clearly intends to loosen the rigid formalities which had previously governed will formation, and to move away from situations in which failure of those rigid formalities would defeat the testator’s clear intent.

The Appellate Division recently affirmed that a document offered as a will for probate under N.J.S.A. 3B:3-3 need not be signed by the testator to be valid as a will. In re Alleged Will of Macool, 416 N.J. Super. 298, 311 (App.Div. 2010). In Macool, the Court reviewed a decision in which the trial court denied admission to probate of a draft of a will prepared for the decedent, but not executed or seen by her before she died. Id. The Appellate Division affirmed denial of probate for the document on the grounds that it had not been seen by the decedent, but reversed that part of the trial court’s opinion that construed N.J.S.A. 3B:3-3 to require a signature of the testator. Id. The Court wrote, “We are satisfied that a writing offered under N.J.S.A. 3B:3-3 need not be signed by the testator in order to be admitted to probate. To hold otherwise would render the relaxation available in N.J.S.A. 3B:3-3 inapplicable to N.J.S.A. 3B:3-2(b). Stated differently, because the essence of a holographic will is that it must be in the testator's handwriting, the only conceivable relief offered by N.J.S.A. 3B:3-3 to this form of will must be that it need not be signed by the testator.” Id.

Plaintiff offers two photocopied pages from the middle of a letter written by the decedent to him in July of 1998, with an original handwritten annotation. Dr. Cameron in his testimony authenticated the document as written by Ms. Randall and sent to him in 1998. He confirmed that the note printed in blue ink was also in her hand. It is obvious that the decedent considered this letter as an important document capable of disposing of her property upon her death. She kept the photocopy in her bureau for eight years. Dr. Cameron did not find any other correspondence in this location after her death.

When she changed her mind as to the disposition of her estate, she made an appropriate notation on September 8, 2004. She employed the verb “void” which by definition means to invalidate or make ineffectual. If the testator did not intend or believe the excerpt of the letter to have a testamentary effect, she would not have written “VOID” on the paper. The language which she employed disposed of her estate when she

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indicated that everything but the trust is to go to Charles, in appreciation for all of his help throughout the years. This sentence provides for a testamentary disposition of all of the decedent’s assets. I find the language of the notation, as brief as it is, expresses sufficient testamentary intent when viewed in the context of the body of the letter, and its maintenance in a safe place for so many years.

I concede that the missing pages of the letter raise questions, as it is impossible to determine what they contained, or if any additional annotations were added to the decedent’s copy. However, I accept Dr. Cameron’s testimony that these pages were not in the bureau, which indicates that the decedent did not consider this portion of the letter significant.

The Court notes the apparently very close relationship the decedent had with her cousin Charles and it appears that he would be a natural object of her bounty. Further, it is undisputed that the decedent was somewhat eccentric, and distrusted lawyers, courts, and financial institutions to handle her affairs which would explain the manner in which she sought to prepare a will. The relief requested in Plaintiff’s Verified Complaint is therefore granted

The photocopy of the 1998 letter containing the original notation in the margin shall be admitted to probate as a writing intended to be a will under N.J.S.A 3B:3-3. The Surrogate of Essex County shall issue letters of Administration C.T.A. to Charles E. Cameron, III upon his duly qualifying. Counsel fees to be paid by the Estate in the amount of $3,125.00 are awarded to P. Charles DiLorenzo, Esq. for professional services rendered as Guardian ad Litem for the minor, Tre Moeckel.

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