In New Jersey, in order to be admitted to probate, a will must ordinarily be in writing. The will must also be signed by the deceased person or in the deceased person’s name at the deceased person’s direction, and be signed by at least two witnesses who observed the signing of the will. N.J.S.A. 3B:3-2. But what if you are a potential beneficiary or the executor/executrix named in an unsigned will? Can an unsigned will be admitted to probate? Is there anything you can do to have the wishes of a deceased love one honored in this situation? The short answer is yes, provided that the party presenting the unsigned will can prove that certain exceptions apply. However, in the context of probate litigation, the evidentiary burden to demonstrate that the exceptions apply is a heavy one.
A will that does not meet the standard requirements set forth in N.J.S.A. 3B:3-2 may still be deemed valid as a writing intended as a will, even in the absence of witnesses “if the signature and material portions of the document are in the testator's handwriting.” This type of will is frequently referred to by a probate lawyer or in courts as a “holographic will.” Alternatively, if the document is not in the decedent's handwriting, an unsigned document may still be admitted to probate if it can be established that the deceased person intended the document or writing constitute: (1) his or her will; (2) a partial or complete revocation of his or her will; (3) an addition to or an alteration of his or her will; or (4) a partial or complete revival of his or her formerly revoked will or of a formerly revoked portion of the will. The intent of the deceased person must be proven by clear and convincing evidence, and proof of intent must include evidence that: (a) the decedent actually reviewed the document in question; and (b) thereafter gave his or her final assent to it.
Opinions from New Jersey’s appeals courts have made clear the possibility that an unsigned document may be admitted as a will. However, proving that such treatment is appropriate is a highly fact specific task that is difficult to prove. In one recent appeal involving a dispute over an estate, the Appellate Division stated, "the greater the departure from Section 2's formal requirement, the more difficult it will be to satisfy Section 3's mandate that the instrument reflect the testator's final testamentary intent." In other words, the more that a document lacks the usual formalities required for a will to be admitted to probate, the stronger the evidence necessary to have the non-conforming document admitted as a will. In numerous appeals in the New Jersey Appellate Division, courts have emphasized that they will not engage in "speculat[ion] as to whether the proposed writing accurately reflects the decedent's final testamentary wishes." Thus, the burden is squarely on the party advocating the admission of an unsigned document to probate to prove the document was intended to be the decedent’s will.
In order to pursue the admission of an unsigned will or codicil to probate, probate litigation must be initiated in the Superior Court in the county in which the deceased person was domiciled. The assistance of a probate lawyer may be beneficial to ensuring that probate litigation is pursued effectively.
The probate lawyers at the Law Office of Bart J. Klein, located in Maplewood, New Jersey, counsel clients regarding estate litigation and probate litigation matters. We appear in courts throughout New Jersey and welcome you to contact us for further information.
© 2018 Law Office of Bart J. Klein