holding that the doctrine of probable intent comes into play when a Will contains a gap

IN THE MATTER OF THE ESTATE OF THOMAS J. DUFFY, Deceased.

DOCKET NO. A-3400-09T1

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION.

Argued March 23, 2011
Decided April 8, 2011

NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION

Before Judges Fisher, Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County, Docket No. 1072 66.

Christian M. Scheuerman argued the cause for appellants Dawn Duffy and Kristi C. Duffy (The Benari Law Firm, PC, attorneys; Mr. Scheuerman, on the brief).

Thomas C. Haynes argued the cause for respondent Diane Smolenski.

PER CURIAM

At the heart of this appeal is a Will in which the testator, Thomas Duffy, directed that his "jewelry, personal effects, household goods, works of art and automobiles" were to pass to his friend, Diane Smolenski, and if she predeceased him, the "entire estate" would pass to a veterinarian to care for Thomas's pets. Because Diane did not predecease him, the Will left a gap because it did not provide an express disposition of Thomas's entire estate, which included his real property in

Page 2

Brigantine. Consequently, Thomas's wife, Dawn, from whom he was separated for many years, and his daughter, Kristi, from whom he was estranged, sought a determination that the real property should pass pursuant to the laws of intestacy. After a nonjury trial, Judge William C. Todd, III, found that Thomas intended to convey his entire estate to Diane in the event she survived him. In deferring to the judge's findings, we affirm.

The trial, which occurred over the course of five days, encompassed numerous issues regarding the validity and enforceability of the Will, the presence of undue influence, and actual ownership of the Brigantine property. Judge Todd provided a lengthy oral opinion in which he concluded that: the Will was valid and enforceable; Thomas's probable intent was to convey his entire estate to Diane if she survived him; and the estate was the owner of the Brigantine property.

In appealing, Dawn and Kristi argue that the case boiled down to whether Thomas made "a mistake" in making his Will, and in so framing the issue, they contend that Diane failed to prove a need for reformation by clear and convincing evidence. Viewing Diane's proofs as insufficient to sustain that burden, they argue that the real property should pass by the laws of intestacy, namely: to Dawn, Thomas's surviving spouse, pursuant

Page 3

to N.J.S.A. 3B:5-3(a), or if their lengthy separation¹ should disqualify Dawn, then to Kristi, his only child, pursuant toN.J.S.A. 3B:5-4(a).

We agree with Judge Todd's determination that the Will should be viewed as containing a gap. That is, as Diane has argued, the Will, which was not professionally produced, does not literally express a disposition of all parts of the estate in the event Diane survived Thomas. But the Will does suggest that Thomas contemplated a disposition of his entire estate; the Will's third paragraph² makes a disposition of the "entire estate" and its fifth paragraph³ directs the executor to pay all

Page 4

taxes due out of the "residuary estate." Accordingly, the Will's relevant provisions demonstrated that Thomas intended to convey his entire estate, because he referenced the entire estate and directed dispositions from his residuary estate, even though he failed to address what would become of the residuary if Diane survived him.

So viewed, the judge rightly understood that the matter turned on Thomas's probable intent. See, e.g., In re Estate of Burke, 48 N.J. 50, 53 (1966) (holding that the doctrine of probable intent comes into play when a Will contains a gap). In pursuing that question to its logical conclusion, the claim that a testator -- by making a Will -- intended to allow some portion of his estate to pass by way of the intestacy laws is dubious at best. As the Supreme Court has held, "[t]he idea of anyone deliberately purposing to die testate as to a portion of his estate and intestate as to another portion is so unusual in the history of testamentary disposition as to justify almost any construction to escape it." Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 572 (1962) (quoting In re Fabbri's Will, 140 N.E.2d

Page 5

269, 273 (N.Y. 1957)). Here, the evidence fully supported Judge Todd's findings that Thomas was estranged from his wife and daughter; indeed, this is amply demonstrated by the Will itself, which contains no reference to them by name or relationship. In light of these circumstances, it would be extremely odd -- if not preposterous -- to conclude that Thomas deliberately intended to permit the Brigantine property to pass to either Dawn or Kristi by the laws of intestacy.

Having rejected Dawn and Kristi's contention that the Will should be interpreted as written to create a partial intestacy, the judge was required to apply the doctrine of probable intent to ascertain what should become of the Brigantine property. This doctrine has been described in the following way:

[I]n ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances. So far as the situation fairly permits, courts will ascribe to the testator, "those impulses which are common to human nature, and will construe the will so as to effectuate those impulses."

[Fidelity Union Trust Co., supra, 36 N.J. at 564-65 (citations omitted) (quoting Greene v. Schmurak, 39N.J. Super. 392, 400 (App. Div.), certif. denied, 21 N.J. 469 (1956)); see also In re Branigan, 129 N.J.324, 332 (1992).]

Page 6

The search for the testator's probable intent may reach beyond the four corners of the Will. In re Estate of Payne, 186 N.J. 324, 335 (2006); Engle v. Siegel, 74 N.J. 287, 291 (1977 ). Accordingly, extrinsic evidence that "furnishes information regarding the circumstances surrounding the testator" may be offered to "aid in ascertaining [the testator's] probable intent," and "[w]here the probable intent is thus made manifest . . ., the court may not refuse to effectuate that intent by indulging in a merely literal reading of the instrument." Wilson v. Flowers, 58 N.J. 250, 260 (1971); see also Payne, supra, 186 N.J. at 335; In re Estate of Flood, 417 N.J. Super. 378, 381 (App. Div. 2010).

In seeking Thomas's probable intent, Judge Todd recognized that the proofs conflicted and he identified the difficulties inherent in resolving the problem. In summarizing his lengthy and thorough oral decision, we first recognize that Judge Todd found Thomas's estrangement from both Dawn and Kristi precluded a finding that he intended their receipt of any part of the estate. Instead, Thomas's close relationship with Diane, together with the fact that references to her in the Will predominate -- she is referred to in the unartful Will as the beneficiary of his personal property and also named as executrix — and Dawn and Kristi were not mentioned at all, precluded a

Page 7

finding that Thomas had any intent that Dawn or Kristi would benefit from his Will.

In weighing the evidence, the judge found Diane was "the most logical candidate" to be the intended beneficiary of the entire estate. We must defer to these findings because they are based on credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We also conclude that Judge Todd applied the appropriate standard of proof. Dawn and Kristi argue that the judge was required to determine Thomas's probable intent by application of the clear and convincing standard. In fact, as Judge Todd correctly held, in this context the issue was to be resolved by resort to the preponderance standard. See Fidelity Union Trust Co., supra, 36 N.J. at 565.

Affirmed.

--------

Notes:

¹ Thomas and Dawn were married in 1977 and separated in the early 1990's. Although they never divorced, Thomas and Dawn remained separated for approximately the last fifteen years of his life.

² The Will is two pages long and contains the following critical paragraphs:

SECOND: I give such jewelry, personal effects, household goods, works of art and automobiles as I may own at the time of my death, together with all policies of insurance thereon, to my friend DIANE SMOLENSKI, provided she survives me.

THIRD: In the event that DIANE SMOLENSKI does not survive me, I leave my entire estate to PAT PICONE, my veterinarian, to care for my pets.

³ For the sake of completeness, subsection (a) of this fifth paragraph states in full: "I direct that all inheritance, estate, transfer and succession taxes, federal, state and foreign, which may be due and payable as a result of my death, together with all interest and penalties thereon, with respect to all property includable for such tax purposes, shall be paid out of the principal of my residuary estate. I authorize my executor to pay such taxes at his absolute discretion" (emphasis added).

Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

In the Matter of the Estate of Thomas J. Duffy, Deceased probable intent

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3400-09T1

IN THE MATTER OF THE ESTATE OF THOMAS J. DUFFY, Deceased.

________________________________________________ Argued March 23, 2011 - Decided April 8, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County, Docket No. 107266.

Christian M. Scheuerman argued the cause for appellants Dawn Duffy and Kristi C. Duffy (The Benari Law Firm, PC, attorneys; Mr. Scheuerman, on the brief).

Thomas C. Haynes argued the cause for respondent Diane Smolenski.

PER CURIAM At the heart of this appeal is a Will in which the

testator, Thomas Duffy, directed that his "jewelry, personal effects, household goods, works of art and automobiles" were to pass to his friend, Diane Smolenski, and if she predeceased him, the "entire estate" would pass to a veterinarian to care for Thomas's pets. Because Diane did not predecease him, the Will left a gap because it did not provide an express disposition of Thomas's entire estate, which included his real property in

Brigantine. Consequently, Thomas's wife, Dawn, from whom he was separated for many years, and his daughter, Kristi, from whom he was estranged, sought a determination that the real property should pass pursuant to the laws of intestacy. After a nonjury trial, Judge William C. Todd, III, found that Thomas intended to convey his entire estate to Diane in the event she survived him. In deferring to the judge's findings, we affirm.

The trial, which occurred over the course of five days, encompassed numerous issues regarding the validity and enforceability of the Will, the presence of undue influence, and actual ownership of the Brigantine property. Judge Todd provided a lengthy oral opinion in which he concluded that: the Will was valid and enforceable; Thomas's probable intent was to convey his entire estate to Diane if she survived him; and the estate was the owner of the Brigantine property.

In appealing, Dawn and Kristi argue that the case boiled down to whether Thomas made "a mistake" in making his Will, and in so framing the issue, they contend that Diane failed to prove a need for reformation by clear and convincing evidence. Viewing Diane's proofs as insufficient to sustain that burden, they argue that the real property should pass by the laws of intestacy, namely: to Dawn, Thomas's surviving spouse, pursuant

2

A-3400-09T1

to N.J.S.A. 3B:5-3(a), or if their lengthy separation1 should disqualify Dawn, then to Kristi, his only child, pursuant to N.J.S.A. 3B:5-4(a).

We agree with Judge Todd's determination that the Will should be viewed as containing a gap. That is, as Diane has argued, the Will, which was not professionally produced, does not literally express a disposition of all parts of the estate in the event Diane survived Thomas. But the Will does suggest that Thomas contemplated a disposition of his entire estate; the Will's third paragraph2 makes a disposition of the "entire estate" and its fifth paragraph3 directs the executor to pay all

1Thomas and Dawn were married in 1977 and separated in the early 1990's. Although they never divorced, Thomas and Dawn remained separated for approximately the last fifteen years of his life.

2The Will is two pages long and contains the following critical paragraphs:

SECOND: I give such jewelry, personal ef- fects, household goods, works of art and automobiles as I may own at the time of my death, together with all policies of insur- ance thereon, to my friend DIANE SMOLENSKI, provided she survives me.

THIRD: In the event that DIANE SMOLENSKI does not survive me, I leave my entire estate to PAT PICONE, my veterinarian, to care for my pets.

3For the paragraph states in full: "I direct that all inheritance, estate, transfer and succession taxes, federal, state and

sake of completeness, subsection (a) of this fifth

3

(continued) A-3400-09T1

taxes due out of the "residuary estate." Accordingly, the Will's relevant provisions demonstrated that Thomas intended to convey his entire estate, because he referenced the entire estate and directed dispositions from his residuary estate, even though he failed to address what would become of the residuary if Diane survived him.

So viewed, the judge rightly understood that the matter turned on Thomas's probable intent. See, e.g., In re Estate of Burke, 48 N.J. 50, 53 (1966) (holding that the doctrine of probable intent comes into play when a Will contains a gap). In pursuing that question to its logical conclusion, the claim that a testator -- by making a Will -- intended to allow some portion of his estate to pass by way of the intestacy laws is dubious at best. As the Supreme Court has held, "[t]he idea of anyone deliberately purposing to die testate as to a portion of his estate and intestate as to another portion is so unusual in the history of testamentary disposition as to justify almost any construction to escape it." Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 572 (1962) (quoting In re Fabbri's Will, 140 N.E.2d

(continued) foreign, which may be due and payable as a result of my death, together with all interest and penalties thereon, with respect to all property includable for such tax purposes, shall be paid out of the principal of my residuary estate. I authorize my executor to pay such taxes at his absolute discretion" (emphasis added).

4

A-3400-09T1

269, 273 (N.Y. 1957)). Here, the evidence fully supported Judge Todd's findings that Thomas was estranged from his wife and daughter; indeed, this is amply demonstrated by the Will itself, which contains no reference to them by name or relationship. In light of these circumstances, it would be extremely odd -- if not preposterous -- to conclude that Thomas deliberately intended to permit the Brigantine property to pass to either Dawn or Kristi by the laws of intestacy.

Having rejected Dawn and Kristi's contention that the Will should be interpreted as written to create a partial intestacy, the judge was required to apply the doctrine of probable intent to ascertain what should become of the Brigantine property. This doctrine has been described in the following way:

[I]n ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances. So far as the situation fairly permits, courts will ascribe to the testator, "those impulses which are common to human nature, and will construe the will so as to effectuate those impulses."

[Fidelity Union Trust Co., supra, 36 N.J. at 564-65 (citations omitted) (quoting Greene v. Schmurak, 39 N.J. Super. 392, 400 (App. Div.), certif. denied, 21 N.J. 469 (1956)); see also In re Branigan, 129 N.J. 324, 332 (1992).]

5

A-3400-09T1

The search for the testator's probable intent may reach beyond the four corners of the Will. In re Estate of Payne, 186 N.J. 324, 335 (2006); Engle v. Siegel, 74 N.J. 287, 291 (1977). Accordingly, extrinsic evidence that "furnishes information regarding the circumstances surrounding the testator" may be offered to "aid in ascertaining [the testator's] probable intent," and "[w]here the probable intent is thus made manifest . . ., the court may not refuse to effectuate that intent by indulging in a merely literal reading of the instrument." Wilson v. Flowers, 58 N.J. 250, 260 (1971); see also Payne, supra, 186 N.J. at 335; In re Estate of Flood, 417 N.J. Super. 378, 381 (App. Div. 2010).

In seeking Thomas's probable intent, Judge Todd recognized that the proofs conflicted and he identified the difficulties inherent in resolving the problem. In summarizing his lengthy and thorough oral decision, we first recognize that Judge Todd found Thomas's estrangement from both Dawn and Kristi precluded a finding that he intended their receipt of any part of the estate. Instead, Thomas's close relationship with Diane, together with the fact that references to her in the Will predominate -- she is referred to in the unartful Will as the beneficiary of his personal property and also named as executrix -- and Dawn and Kristi were not mentioned at all, precluded a

6

A-3400-09T1

finding that Thomas had any intent that Dawn or Kristi would benefit from his Will.

In weighing the evidence, the judge found Diane was "the most logical candidate" to be the intended beneficiary of the entire estate. We must defer to these findings because they are based on credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We also conclude that Judge Todd applied the appropriate standard of proof. Dawn and Kristi argue that the judge was required to determine Thomas's probable intent by application of the clear and convincing standard. In fact, as Judge Todd correctly held, in this context the issue was to be resolved by resort to the preponderance standard. See Fidelity Union Trust Co., supra, 36 N.J. at 565.

Affirmed.

7

A-3400-09T1

Nuts & Bolts of Elder Law & Estate Administration

Nuts & Bolts of Elder Law & Estate Administration

April 26, 2011 5:00 PM to 9:00 PM Tuesday Sheraton Edison, Edison

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.

This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice.

Everything you need to know about elder law & estate administration including:


• Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?


• Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms


• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms


• Basic Tax Considerations - Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters


• Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists


• Medicaid Planning in Light of Federal Medicaid Reform - Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules; probate; undue influence; competency
…and more

Speakers:

KENNETH A. VERCAMMEN, ESQ.

Chair, ABA Elder Law Committee Past GP Solo Section Attorney of the Year 2006 NJSBA Municipal Court Practitioner of the Year K. Vercammen & Associates

THOMAS D. BEGLEY, III, ESQ.

Begley, Begley & Bookbinder, PC (Moorestown)

WILLIAM P. ISELE, ESQ.

Past NJ Ombudsman for the Elderly

MARTIN A. SPIGNER, ESQ.

Law Office of Martin A. Spigner

New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of: 
The New Jersey State Bar Association Rutgers - The State University of New Jerseys Eton Hall University 
One Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 • Fax: (732)249-0383 • CustomerService@njicle.com

Seminar # S578-22154 S578-22154

Tuition fees	Reg. Fee	Reg. Type
General Tuition (REG)	$169.00	REG
NJICLE Season Ticket (STX)	1 Season Ticket(s)	STX
MEMBERS, NJSBA Co-Sponsoring (COS*)	$129.00	COS*
MEMBERS, NJSBA (NJB*)	$139.00	NJB*
MEMBERS, NJSBA YLD (YLD*)	$129.00	YLD*
Recent admittees (YL)	$145.00	YL
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Law Students (with Student ID) (STU)	$0.00	STU
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Door Registrations $189

* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.4 hours of total CLE credit. Of these, 1.2 qualify as hours of credit for ethics/professionalism.

Presented in cooperation with the NJSBA Elder & Disability Law Section and NJSBA Young Lawyers Division

Sheraton Edison Hotel Raritan Center

125 Raritan Center Parkway · Edison, New Jersey 08837

http://www.njicle.com/seminar.aspx?sid=1406

Matter of the Estate of : LEIGH CAMERON RANDALL :

_____________________________________

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

: : :

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

1

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.

2

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

3

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.

4

2011 update Wills and Estate Planning Se

2011 update Wills and Estate Planning Seminar

WHEN: Wednesday March 16, 2011 12:15-1:00 PM

WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2^nd floor, Edison, NJ 08817

Invited: Seniors, Club Presidents, Accountants, CPA's, Financial Planners, Insurance Producers, Nursing Home Administrators, Hospital and Nursing Home Social Workers, Medicaid Workers, Office on Aging Personnel,

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(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

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Doctrine of probable intent could not be used to set up special needs trust

Doctrine of probable intent could not be used to set up special needs trust

IN THE MATTER OF THE TRUSTS TO BE ESTABLISHED
IN THE MATTER OF THE ESTATE OF MARGARET A. FLOOD, DECEASED.

DOCKET NO. A-1643-09T1

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION.

Submitted December 8, 2010
Decided December 29, 2010

Before Judges Cuff, Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-178-09.

The opinion of the court was delivered by

FISHER, J.A.D.

The record in this probate matter demonstrates the decedent had engaged in estate planning but never executed a will by the time of her death. Notwithstanding, the judge utilized the

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doctrine of probable intent in permitting the establishment and funding of supplemental benefit trusts for decedent's two disabled daughters. Because the doctrine of probable intent--a rule of will construction — cannot be used to create a testamentary disposition when a decedent dies intestate, we reverse.

The facts are relatively simple and undisputed. Margaret A. Flood was survived by four children. Two of her children are disabled and the beneficiaries of supplemental security income and Medicaid programs; one of those two receives special residential services and other benefits from the Division of Developmental Disabilities (DDD). When judgment was entered, DDD's statutory lien exceeded $1,000, 000; the lien has since grown at a rate in excess of $300 per day.

Margaret first considered estate planning following her husband's death in 2004. Margaret's daughter-in-law, who is an attorney, certified that Margaret was concerned about protecting the inheritances of her disabled daughters from any obligations to reimburse the governmental entities that had provided benefits and services. Although in late 2004 Margaret expressed these concerns and her desire to retain an attorney, it appears she did not consult an attorney until March and April 2008. Thereafter, Margaret's plans were interrupted first by the

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illness of one of her daughters and then by an injury she sustained in April 2008. Margaret died on May 24, 2008, with an estate valued at $480,000. She never executed a will or testamentary trust.

The estate's administrator filed this action, seeking the court's authorization to establish and fund the trusts he claims would have been created had Margaret's death not intervened. The matter came before the trial court on the return date of the initial order to show cause; DDD opposed the relief sought.

The facts, as briefly outlined above, were not disputed. The parties proceeded on the assumption that the decedent possessed the unfulfilled intent to create supplemental benefits trusts for her two disabled daughters. The bone of contention instead turned on whether a court may animate such an intention in the complete absence of a will or testamentary trust. The trial judge rejected DDD's arguments and held that the doctrine of probable intent could reach that far.

We conclude that the trial judge's well-intended decision was based on a mistaken understanding of the applicable law. In the absence of a testamentary disposition, Margaret's estate passed by way of the laws of intestacy, and her children's interests vested immediately upon her death. N.J.S.A. 3B:1-3. The doctrine of probable intent--utilized here to do what

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Margaret failed to do in life--has no application in the absence of a will. Certainly, as the administrator argues, the doctrine of probable intent has evolved; it now represents, as our Supreme Court has held, a "broader and more liberal approach to will construction" than the prior insistence on formalistic results. In re Estate of Burke, 48 N.J. 50, 63 (1966).

The doctrine permits the reformation of a will in light of a testator's probable intent by "searching out the probable meaning intended by the words and phrases in the will." Engle v. Siegel, 74 N.J. 287, 291 (1977). Moreover, extrinsic evidence may be offered not only to show an ambiguity in a will but also, if an ambiguity exists, "to shed light on the testator's actual intent." Wilson v. Flowers, 58 N.J. 250, 263 (1971). The outer reach of the doctrine's evolution is likely the Court's decision in In re Estate of Branigan, 129 N.J. 324, 330-31, 335 (1992), where the doctrine was used to reform a will to take advantage of changes in federal estate tax laws that had occurred after execution of the will and after the death of the testator.¹

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Although there has been a progression from an era that exalted and enforced more formalistic limits, the doctrine of probable intent has never been applied to create a testamentary disposition when the decedent failed to execute a will. It "cannot be used to write a will that the testator did not write." In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005); accord Burke, supra, 48 N.J. at 64 (holding that even when a decedent has executed a will, "a court may not... conjure up an interpretation or derive a missing testamentary provision out of the whole cloth"); In re Cook, 44 N.J. 1, 12 (1965) (Hall, J., dissenting) (recognizing that "[a] wider outlook and reliance on probable intention should never be permitted... to work out a will which a testator did not make")²; Chrisman v. Cornell Univ., 1 N.J. Super. 486, 489 (Ch. Div. 1948) (holding that "[t]he

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function of a court is to construe a will so as to give effect to the intention of the testator, but the court can not make a new will for him").

In essence, the doctrine of probable intent is a rule of construction or interpretation and, therefore, presupposes an existing testamentary disposition. See, e.g.. In re Estate of Payne, 186 N.J. 324, 335 (2006) (holding, "[i]n interpreting a will, our aim is to ascertain the intent of the testator"); In re Estate of Dawson, 136 N.J. 1, 9 (1994) (instructing that, in considering application of the testator's probable intent, a court must "look first to the testator's will"); Branigan, supra, 129N.J. at 331 (viewing the doctrine of probable intent as "[a] leading principle governing will construction"); Cook, supra, 44N.J. at 6 (recognizing that the doctrine of probable intent is a principle to be applied "in the interpretation of wills"); Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564-65 (1962) (defining the doctrine of probable intent as the device by which a court will "ascertain[] the subjective intent of the testator... [by giving] primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in light of the surrounding facts and

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circumstances..."). Where there is no will there can be no will construction.³

The judgment under review--issued to protect the inheritances of two of Margaret's daughters from the immediate reach of reimbursement liens--cannot stand because it is anchored to a rationale at odds with our existing jurisprudence, which precludes application of the doctrine of probable intent to create a testamentary disposition where none existed.⁴

Reversed.

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Notes:

^1. In 2004, the Legislature enacted N.J.S.A. 3B:3-33.1, thereby adding weight to the established common law tradition of reforming instruments to conform to the probable intention of testators. Like the jurisprudence developed by our courts, this statute and other related provisions expressly require the existence of a will or other testamentary instrument before permitting utilization of rules of interpretation. See, e.g., N.J.S.A. 3B:3-33.1(a) (declaring that "[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions...");N.J.S.A. 3B:3-33.1(b) (declaring that "[t]he intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the dispositions therein...").

^2.The Court later recognized that its majority opinion and Justice Hall's dissenting opinion in Cook differed on "the nature and quality of the evidence relied upon to establish the intent found," not on the descriptions of the doctrine of probable intent or its reach. Burke, supra, 48N.J. at 64 n.3.

^3.Kimley v. Whittaker, 63 N.J. 235 (1973), upon which the administrator relies, is inapposite. There, the Court interpreted a will in which the testator devised all her property to her husband, made no alternative disposition if he predeceased her--as he did--and "for reasons [she] care[d] not to disclose," made no provision for her daughter or her daughter's children. Id. at 237. In considering the will's language, the Court concluded that the testator did not intend to incorporate the laws of intestacy if her devise to her husband lapsed. Id. at 240. The matter at hand does not involve a will disposition that lapsed and created a potential for the application of the intestacy laws but rather the utter absence of a will--a markedly different circumstance.

^4.We lastly observe that the administrator has relied on an order of another probate judge that purportedly supports his position, and DDD has referred us to another order of another judge that appears to have reached a contrary conclusion. The decisions of trial judges are, of course, not binding on us. We recognize, however, that probate judges develop an expertise in the area that might have been illuminating had either party provided us with copies of those judges' decisions. In the absence of any understanding of the underlying reasoning, the parties' references to these trial court rulings have no value to us.