Unsigned Will not admitted to probate -In re Estate of Connolly
DOCKET NO. A-3855-17T1
PER CURIAM
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
. On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0187-2017. PER CURIAM
Appellants, the godchildren of decedent Julia Eileen Connolly (decedent), appeal from a September 27, 2017 order, dismissing their application to admit to probate a will that decedent neither reviewed nor signed, and admitting to probate decedent's signed will from 1992. They also appeal from a March 23, 2018 order denying their application for counsel fees. We affirm the orders on appeal for the reasons cogently stated by Judge Walter Koprowski, Jr. in his oral opinions issued September 1, 2017, and March 23, 2018.
This case involves a purported will drafted by an attorney who never met decedent. He drafted a seventeen-page will based on a telephone conversation he had with decedent, who was then ninety years old and in fragile health. He never had the chance to review the draft with her, because she unfortunately died the day after their phone conversation. Hence, she never reviewed the completed draft will or even saw it, and she did not give her final approval of the document.
Nearly a decade ago, we held that an unsigned will cannot be admitted to probate under N.J.S.A. 3B:3-3 unless the decedent reviewed the will and, thereafter, finally assented to it.
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.
Two years later, we followed that holding in In re Estate of Ehrlich, 427 N.J. Super. 64, 71-72 (App. Div. 2012).
We agree with Judge Koprowski that Macool is directly on point and definitively bars appellants' claim. Accepting appellants' invitation to focus exclusively on a decedent's intent, without the additional evidence Macool requires, would open the door to fraud and essentially vitiate the requirement of a written will.
We also find no abuse of discretion in Judge Koprowski's decision to deny appellants' counsel fee application, in light of the obvious legal and factual weakness of their case. See R. 4:42-9(a)(3); In re Reisdorf, 80 N.J. 319, 326 (1979) (stating that counsel fees will ordinarily be awarded to both sides in a will contest "[e]xcept in a weak or meretricious case").
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Nugent and Reisner
1 comment:
There were two individuals who were not related to the decedent or the godchildren who provided written certifications of Ms. Connolly's intent. In fact a total of five individuals certified Ms. Connolly's wishes. One in fact witnessed and quoted Ms.Connolly's statement to her goddaughter that the 1992 will was "obsolete." All five certifications are a corroboration of her intent and assent to the 2017 unsigned will. Indeed, If the 1992 will is examined there are numerous items that were no longer valid in 2017 including a scholarship fund for a now non existent high school.This issue with the high school was in fact pointed out in court to the superior court judge. The Judge however did not look more closely at Ms. Connolly's statement regarding the wills' obsolescence and rendered a decision on the disposition of the estate within 10 minutes without any further research. The appellate court's decision to focus on preventing fraud in future cases has denied justice to the appellants in this case. Isn't "the primary mission of the judiciary to see justice done in individual cases," as the appellate court has stated in Santos vs. The Estate of Santos 217 NJ Super, 411,416(AppDiv.1986)?
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