The state probate code was amended in 2004 to permit documents that were intended to have testamentary effect but were not executed in accordance with the statutory requirements. The new probate code’s doctrine of substantial compliance holds that if a document was not executed in compliance with the statute, the proponent may establish by clear and convincing evidence that the writing was intended by the decedent to be a will. The doctrine also extends to a revocation of a will, an alteration of the will or partial or complete revival of an old will.
In the Anton, the decedent was involved in divorce proceedings with his wife. He went with his son-in-law to an attorney and instructed counsel to leave one-third of his estate to two of his children and one-third in trust for the grandchildren of a third child. Subsequently, the decedent changed his mind to have his estate left outright to his children in equal shares. Drafts of a will, power of attorney and living will were prepared, mailed and approved. An appointment for execution of the will was arranged. The decedent died that morning.
The attorney testified that the drafts and the execution set of documents were identical. After taking testimony, the court granted probate to the unsigned will. One part of this story is that copies of documents were sent to a son-in-law who spoke with the decedent and attended the meetings. He was a witness who could give testimony. A second factor was that the first meeting between the attorney, decedent and son-in-law occurred twenty-one days before death. Perhaps, more importantly, execution drafts were prepared an appointment scheduled and the application for probate was unopposed.
The Decision
This decision is marked departure from the cases studied in law school where wills were not probated because the witnesses did not see the testator sign or were not in the same room to see all of the signatures affixed.
s decision leads one to imagine its impact on non-probate assets. Clearly, beneficiary designations are creatures of contract law but one wonders if a default option, such as paying retirement benefits to an estate, can be cured by having benefits payable to a qualifying trust created under an unsigned will. We know that a state statute disinheriting a divorced spouse does not trump ERISA.
Navigating Director and Officer Liability in Times of Financial Distress
Director and officer liability increases sharply when a company is in financial distress. Decisions that would draw little attention in a healthy business can later be challenged by creditors, shareholders, bankruptcy trustees, and regulators as breaches of fiduciary duty, fraudulent transfers, or oversight failures. Understanding where that exposure comes from, and how to manage it, […]
Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey
For developers pursuing battery energy storage system (BESS) projects, finding the right property is only the beginning. BESS site selection is as much a legal and transactional exercise as a real estate decision, with risk analysis central to the project’s ultimate success. Key Takeaways The core questions for BESS site selection in New York and […]
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
