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Notes Found After Decedent’s Death Can’t be a Valid Will

Notes Found After Decedent’s Death Can’t be a Valid Will

Incomplete, unfinalized and unsigned pieces of paper were at best a work-in-progress

In what may be an unprecedented victory in New Jersey probate litigation, the Superior Court of New Jersey ruled as a matter of law in favor of the primary beneficiaries under a probated will, foreclosing the proponents of a purportedly valid “new” will from taking any discovery.  The Chancery Division, Probate Part, held that notes found after the decedent’s death didn’t constitute a valid will and were, at best, a work-in-progress, subject to revisions.  


A Work in Progress

In Estate of Concetta Stone, Docket No. 239692 (Sup. Ct. N.J. Ch. Div. Feb. 28, 2014), the decedent, Concetta E. Stone, died testate on Jan. 11, 2013.  Her will and codicil were admitted to probate.   The executor of Concetta’s estate brought a proceeding pursuant to New Jersey Court Rule 4:95-2 for guidance in determining whether notes found after Concetta’s death should be admitted to probate under New Jersey Statute Annotated (N.J.S.A.) 3B:3-3.  That statute provides that even if a document isn’t executed in compliance with N.J.S.A. 3B:3-2,1 the document will be treated as if it had been executed pursuant to the formalities if the proponent of the document can prove by clear and convincing evidence that the decedent intended the writing to constitute the decedent’s will.2   For a writing to be admitted to probate as a will under N.J.S.A. 3B:3-3, the proponent 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.”3

The court found that far from containing unambiguous evidence of “final assent,” nine pieces of paper (the Notes)4 provided – literally, with a question mark (“?”) written in Concetta’s own hand – that uncertainty was still in her mind while she was making the Notes.  A review of the Notes revealed numerous anomalies.  For example, despite explicit instructions from her attorney on how to draft a holographic will, Concetta didn’t complete one.  Concetta’s attorney advised that she should consider assigning percentages to the various bequests and that once she made these decisions, he could draft a new will or codicil based upon the handwritten will.  Nonetheless, Concetta failed to do so.  Months passed and the attorney never heard back from her.  Further, on a typed document, Concetta crossed out certain (but not all) monetary bequests and wrote possible percentage bequests instead.  However, the percentages didn’t add up to 100 percent or state what would happen to over half of the residuary left of the Concetta’s  estate.  Likewise, the court opined that far from giving “final assent,” Concetta wrote “Charities?” confirming that this was an incomplete thought.  Concetta never made a final decision whether to leave any charities a portion of her estate, let alone which specific charities.  She never gave the final assent needed, as a matter of law, to nullify the probated will and replace it with a new testamentary plan.  The Notes were a work-in-progress, subject to revisions.


Public Policy Rules the Day

In line with New Jersey precedent,5 the court’s holding in Stone solidified that there must be a clear line drawn between: (1) a testamentary document as to which there’s clear and convincing evidence of “final assent;” and (2) anything less, such as the type of “work in progress” as exemplified by the Notes.  Considering New Jersey’s very broad statute and case law, which has held that even an unsigned document can be intended as a will,6 the court’s ruling in Stone provides guidance as to what won’t constitute a will.  A contrary or less clear decision by the court could have caused dramatic implications for estate planning in New Jersey.  For example, in the high-tech world of 21st century communication, if incomplete, unfinalized and unsigned pieces of paper could be a valid will, why not a series of e-mails, or draft e-mails?  Or why not a text message?  Or a posting on Facebook, Twitter or other social media?  Formal testamentary documents prepared by attorneys and executed by decedents, such as the probated will executed by Concetta, would mean little if they could be “undone” by these types of communications.  Wisely, the court’s decision draws the line between what could be, and what couldn’t be, a will. 

*The authors' firm represented the primary beneficiaries under the probated will discussed in this article. 


1. New Jersey Stattte Annotated (N.J.S.A.) 3B:3-2 sets forth the qualifications to execute a valid will and a holographic will.  A will shall be: (1) in writing; (2) signed by the testator; and (3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will. A will that doesn’t comply with these requirements is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

2. “Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.” N.J.S.A. 3B:3-3.

3. In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010).

4. The Notes included: (1) a 1-page email from the Concetta’s attorney to Concetta; (2) an incomplete, handwritten and unsigned note; (3) a 2-page letter from Concetta to her attorney with handwritten notes; and (4) five printed pages from websites of charitable organizations devoted to service dogs.

5. In re Probate of Will and Codicil of Macool, supra note 3. 

6. “A writing offered under N.J.S.A. 3B:3-3 neednt be signed by the testator to be admitted to probate.” In re Probate of Will and Codicil of Macool, supra note 3, at 311.




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