Probating an unsigned Will?

The notion that a signature should always be required for certain important documents and instruments continues to fade in New Jersey law, and it appears that the door may be open to probating a Will never signed by the testator.

There’s no reported case I’m aware of allowing the probate of an unsigned Will, though it’s rumored to have occurred.  The Will would come in under N.J.S.A. 3B:3-3, which is something like a saving provision allowing a Will to be admitted even if it does not meet the requirements for a formal Will (N.J.S.A. 3B:3-1) or a holographic Will (N.J.S.A. 3B:3-2).  This statute allows for the probate of a document not otherwise qualifying as Will if the proponent can show by clear and convincing evidence that the decedent intended the document to be a Will.

This rule has been fairly liberally applied, in the interest of equity, and particularly in uncontested matters it can help avoid manifest waste or the thwarting of the decedent’s wishes.   It remains to be seen whether the rule is so broad that it will allow the probate of a document, prepared by someone other than the decedent, that the decedent never signed.

A recent appellate division decision, IMO Louis Macool, Deceased (416 N.J. Super. 298, App.Div. 2010), seems to suggest that an unsigned Will could in fact be admitted to probate.  The facts in Macool aren’t uncommon by any means, except for the moment of the decedent’s death.  Ms. Macool met with her lawyer to change her Will, and the attorney thereafter prepared a “rough” draft of the Will, following Ms. Macool’s central instructions and modifying a few small items.   Before the draft could be reviewed, Ms. Macool died.

The draft Will in Macool was not admitted to probate.  What’s particularly interesting to me are the reasons the draft was rejected.  First, the decedent had never seen the Will.  In addition, the Will contained some terms that she had never discussed with her attorney, and modified some of the terms she directed. The holding makes no mention of a signature requirement:

“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.”

This has pretty significant implications for the practitioner, I think.  While it’s not our practice to have final estate planning documents reviewed before signing, there are times when circumstances almost require it.  If complex documents need to be reviewed in the evening when witnesses are unavailable, for instance, we may go over the documents, obtain “final assent,” and schedule a short follow-up for the actual signing of the instruments.  I suspect that many lawyers send draft copies of Wills to clients for review before meeting.  If the client sends back a message saying that the Will is just right, it seem likely that it would be accepted for probate.

Dying without a Will: the most surprising intestacy law in Pennsylvania and New Jersey

My office is nearly on the border between Pennsylvania and New Jersey, and I recently posted about what I consider the most significant difference between the intestacy rules in the two states. The intestacy law most likely to surprise a client is another matter.

What happens if I die without a Will? When I’m asked that question, there’s one group of people who will almost always call for appointment the following day. Married couples, or domestic partners in New Jersey, with no children and living parents, are very often shocked to discover that the parents will inherit if one of them dies without a Will.

Pennsylvania nearly divides the Estate equally between the surviving spouse and the parent or parents of the decedent. The spouse receives the first $30,000.00 plus one-half of the balance of the Estate, and the rest passes to the parents. If most of the couple’s worth ends up in the Estate of the deceased spouse, the survivor may be left with a considerable financial hardship.

New Jersey is more measured but does not exclude the parents entirely. The surviving spouse or domestic partner receives the first 25% (subject to certain minimum and maximum amounts) and then 75% of the balance of the Estate. So, for instance, if the total Estate assets are $250,000.00, the surviving spouse or domestic partner receives $62,500 as the first 25%, and then $140,625.00 as 75% of the balance. The parents of the decedent receive the remaining $46,875.00

Measured just by the reaction of my clients, neither scheme is what most couples intend. And when the newly motivated couple does come in to have a Will prepared, it’s quite uncommon for them to leave any part of their Estate to their parents.

Dying without a Will: the most significant difference between Pennsylvania and New Jersey

In mind of the fact that estate planning is a significant part of my firm’s practice, it’s surprising how often I’m asked: what happens if I die without a Will?

We are a few miles from the Delaware river separating New Jersey and Pennsylvania, and of course the answer to the question depends on which side of the river you happen to live on. I think it’s fair to say that the rules of intestate succession represent each State’s best guess as to what most people would want if they had left a Will. Pennsylvania and New Jersey guess differently, and one area seems especially critical in my practice.

While there really is no “typical” family as far as I can tell, I am thinking about the married couple who have children together and no children by anyone except their spouse. If one spouse dies, and leaves no Will, what happens?

In New Jersey, the surviving spouse (or domestic partner) inherits 100% of the Estate. The children receive nothing. In Pennsylvania, the surviving spouse receives the first $30,000.00 and 50% of the balance of the Estate, and the remainder goes to the children.

In mind of the fact that younger couples are even less likely than older ones to make a Will, this distinction can have a dramatic impact on the lives of the survivors.