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Monday, November 10, 2014

NJSA 3B:3-3 Writing Intended as Will

In Will of Ferree 369 N.J. Super. 1 (2004) the novel question presented by the appeal is whether the filling in the blanks on a pre-printed will form, signed but not witnessed as required by statute, satisfies the requirements for recognition as a holographic will. The Chancery Division judge held that it does not. He dismissed the complaint seeking admission of the purported will to probate and declared the decedent to have died intestate.
The NJ Appellate Division agree and affirm substantially for the reasons expressed by Judge Clarkson S. Fisher, Jr., in his comprehensive reported opinion in 2003 (Ch. Div. 2003). The Appellate Division did not write a full opinion.
The NJ Legislature effectively reversed the decision in Will of Ferree to permit certain writings and pre-printed forms when the New Probate Law was adopted.
"…The bill also clarifies situations where writings that are intended as wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence."
N.J.S.3B:3-3 was amended to read as follows: 3B:3-3. [Holographic will] Writings intended as wills. [A will which does not comply with N.J.S.3B:3-2 is valid as a holographic will, whether or not witnessed, if the signature and material provisions are in the handwriting of the testator- old statute]
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 formerly revoked portion of the will. New statute
The intent of the Legislature was to overrule the decision in Will of Ferree.
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