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.

Probate Litigator