Probate Reader
Probating an unsigned Will?
Posted by: Pierson W. Backes | Posted on: May 11th, 2011 | 0 Comments
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.
What is the standard for temporary restraints in estate litigation?
Posted by: Pierson W. Backes | Posted on: May 8th, 2011 | 0 Comments
At the beginning of estate litigation, it’s not unusual for a party to apply for temporary restraints, usually in the first filing with the court. Temporary restraints are akin to what are more commonly called injunctions, and as the name suggests the relief is temporary pending further review by the court.
The typical case calling for temporary restraints is where a plaintiff is filing an action but wants to keep the other party from causing further harm during the time between the filing of the action and first court date. Without temporary restraints, the opposing party has (at least) the time between the filing of the complaint and court date and may continue whatever conduct it is that caused the suit. Temporary restraints sought in estate litigation generally seek to preserve the status quo, essentially to put everything in amber. These temporary restraints are often continued after the initial court date until the case can be fully heard.
It’s my experience that courts of equity are generally sympathetic to preserving the status quo, which makes good sense to me. While a chancery court is empowered to do equity and is given broad discretion to do so, the actual articulated standard actually sets the bar quite high. If a party, for whatever reason, opposes a request for an order preserving the status quo, the standard can be difficult to meet.
The rule governing temporary restraints in New Jersey – R. 4:52-1 – allows for an application for temporary restraints without notice to the other parties, or with notice. The rule seems to suggest that the standard shifts depending on whether or not the application is without notice to the adverse party: a party is not entitled to “any temporary restraints [ . . . ] unless the defendant has either been given notice of the application or consents thereto or it appears [. . . ] that immediate and irreparable damage will probably result to the plaintiff before notice can be served.” While the standard of irreparable damages is applied by rule only to ex parte proceedings, the case law carries this standard through all applications for temporary restraints.
The leading case articulating the standard relative to temporary restraints is a 1982 New Jersey Supreme Court case called Crowe v. De Gioia. The test actually set forth in Crowe is 3-pronged: a litigant must show that there is a risk of irreparable harm, that the law underlying the complaint is well-settled, and that the litigant is likely to succeed on the merits. Subsequent cases have read the Crowe test to also require a balancing of the relative weight of the harm posed if the relief is denied against the burden on the adverse party if the relief is granted, and additionally that the relief requested is not adverse to public policy.
Notwithstanding customary practice, applications seeking to preserve the status quo – as opposed to ones seeking more extraordinary relief – are not given a lot of special deference under the Crowe standard. (The only prong of the test where the preservation of the status quo is specifically addressed in Crowe is the likelihood of ultimate success on the merits.)
The greatest difficulty is typically meeting the test for irreparable harm. Any injury that can be addressed by monetary damages is not considered irreparable. In estate litigation, we are often seeking to stop a party from raiding the decedent’s assets. Worse, we often know that a judgment for monetary damages will be an empty victory, where the damages will be difficult or impossible to collect. Preparing to articulate irreparable damages is a significant part of preparing any application for temporary restraints, and even where the plaintiff seeks “only” to preserve the status quo, counsel should be prepared to answer each prong of the Crowe standard, including irreparable damages.
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