December 1, 2014
By Andrew J. DeMaio
In an unpublished opinion, the Appellate Division has held that a draft will that the decedent never had a chance to review cannot be admitted to probate.
Jeanette Vendola and her husband Frank had no children together. But Jeanette developed a "mother-daughter-like relationship" with Frank's daughter Lorri, according to Lorri. After Frank's death, Jeanette told Lorri on several occasions that she wanted to leave all of her assets to her. On February 21, 2011, Jeanette met at her home with an attorney and asked him to prepare a will leaving her estate to Lorri.
The attorney prepared a draft of the will and made an appointment with Jeanette to review and sign it on March 7, 2011. The attorney did not send a draft of the will to Jeanette.
Jeanette became ill and was hospitalized on March 7th, prior to meeting with the attorney. She died the next day, never having seen the draft of her will.
Lorri applied to the Superior Court for probate of the draft will pursuant to N.J.S. 3B:3-3. Under that provision, a writing intended as a will can be admitted to probate even if it is not signed and witnessed. To prevail under N.J.S. 3B:3-3, Lorri would have to prove by clear and convincing evidence that Jeanette intended the document as her will.
Jeanette's relatives, who stood to inherit the estate under the law of intestacy in the absence of a will, objected. They argued that the draft could not be treated as Jeanette's will because she never saw it. They cited In re Probate of Alleged Will & Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010). In Macool, the court held that the proponent of an unsigned will must prove, at a minimum, that (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. Jeanette, they argued, did neither.
The Appellate Division upheld the trial court's holding that the draft of Jeanette's will could not be admitted to probate. Even if there is strong evidence that Jeanette intended for Lorri to inherit the estate, an unsigned document can't be admitted to probate unless she saw and approved it.