Thursday, September 16, 2010

Too Late For Probate

In a case characterized by the New Jersey Appellate Division as involving facts "so uniquely challenging that they have the feel of an academic exercise, designed by a law professor to test the limits of a student's understanding of probate law," the court affirmed the lower court's judgment to decline to admit a will into probate.

An attorney had drafted wills for a husband and wife. He later drafted two codicils for the wife. All  three documents were executed as drafted.

Then, the husband died. The widowed wife came to the attorney's office about a month later and gave him a handwritten note expressing her intent to change her will. The attorney "dictated the entire will while [the wife] was [in his office]." The wife went to lunch while the attorney put the draft into final form. Sadly, she died about an hour after the meeting without having the opportunity to review and sign the new will.

The decedent had no biological children but seven stepchildren who she regarded as her own. She also had two nieces who were close to her. The draft changes would have benefited the nieces, who were plaintiffs in the case. The court regarded the draft as a "work in progress, subject to reasonable revisions and fine tuning."

The court here agreed with the lower court that the will could not be admitted into probate. The court remanded the matter to consider the amount of counsel fees to award. (Mike Frisch)

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