Will of Smith, Matter of

• Citation: 108 N.J. 257,528 A.2d 918
• Parties: In the MATTER OF the Probate of the Alleged WILL OF Esther SMITH, Deceased.
• Decision Date: 29 April 1987
• Court: United States State Supreme Court (New Jersey)

Page 257

108 N.J. 257

528 A.2d 918

In the MATTER OF the Probate of the Alleged WILL OF Esther SMITH, Deceased.

Supreme Court of New Jersey.

Argued Nov. 3, 1986.

Decided April 29, 1987.

Mark S. Anderson, Somerville, for appellants, William Dilly, George Dilly, Grover Bush, Mrs. Harold Eick, and Anna B. Stevens (Woolson, Guterl, Sutphen & Anderson, attorneys).

James C. Richardson, Watchung, for respondents, Roberta Crowley and David J. Smith (Richardson & O'Connor, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

Underlying this appeal is the factual question whether the decedent intended a holographic writing to be her last will and testament. The Law Division ruled that she did not so intend and that the writing should not be admitted to probate. Although the Appellate Division sustained the finding that the decedent did not intend the writing to be her will, that court ordered the admission of the writing to probate because "to do so would implement the decedent's probable intent in the absence of execution of a formal will." Will of Smith, 209 N.J.Super. 356, 359, 507 A.2d 748 (App.Div.1986). We granted certification, 104 N.J. 461, 517 A.2d 446 (1986), and now reverse. We conclude that a holographic writing prepared without testamentary intent may not be admitted to probate merely because it represents the probable intent of the writer.

-I-

Sometime between March 1, 1984, the date of the death of her husband, David Smith, and October 24, 1984, the date of her own death, Esther Smith delivered to Harry Fass, her attorney, a writing. As introduced into evidence, the writing stated:

My entire estate is to be left jointly to my step-daughter

Roberta Crowley

178 Tillotson Rd. Fanwood, N.J.,

and my step-son

David J. Smith

112 Hillside Ave

Watchung, N.J.

Extor--

DAVID

s/ Esther L. Smith

492 Mountainview Dr.

No. Plainfield, N.J.

07063

In the interim, she met with the attorney, who was eighty-four years old and about to retire. Testifying in April 1985, the attorney could not recall when Mrs. Smith delivered the writing to him, stating variously it was April, August, September, or late 1984. According to the attorney's testimony, when Mrs. Smith handed him the writing, which was on a 5 x 7 piece of paper torn from a notebook, she said, "this is my will, this is the way I want my estate to go." 209 N.J.Super. at 358, 507 A.2d 748. He testified further that she also said "she would let me know" if she wanted to make any changes. Id.

The attorney, however, did not treat the writing as a will. His standard practice had been to place each will in a separately labeled envelope, which he would keep in a fireproof safe. In this instance, he simply stapled the piece of paper to the file for the Estate of David Smith. Although he normally did not write on clients' wills--and would not tolerate any typographical errors in them--he added the phrase "Extor-David," indicating that Mrs. Smith's stepson, David, was to be the executor. In a letter dated August 29, 1984, and mailed September 26, 1984, the attorney wrote to the decedent advising her that he was "retiring from the practice of Law on or about October 1, 1984. * * * Your file and/or Last Will and Testament in my office is at your disposal if you do not care to retain [the attorney to whom he was transferring his practice]."

From the sparse record before us, we know little of the family life of Esther Smith, except that she was David Smith's second wife. She was not survived by her husband or parents, and she apparently never had any brothers, sisters, or children. The dispute here is between Mrs. Smith's first cousins and her stepchildren, the son and daughter of David Smith. In addition to the attorney, the only other witness at trial was Roberta Crowley, the stepdaughter, who described Mrs. Smith as an intelligent person who understood the nature of a will.

The trial court concluded that as the testatrix and sole beneficiary of her husband's will, Mrs. Smith learned "some of the formal prerequisites involved in that will and in the probate of a will * * *." Consistent with that conclusion, the trial court observed that Mrs. Smith carefully noted in her daily diary that in March and April 1984 "Harry," her attorney, took her to the Surrogate's Office in Somerville "to take care of the will," and "to the bank to inventory the safe deposit box." On another date, she noted that "Harry" called to tell her she could "sell the sports car." She noted on September 27, 1984, "letter from Harry--he is retiring October 1. I called him--he will take care of my affairs." Notwithstanding these and other entries pertaining to the details of her daily life, the diary contains no reference to her alleged will. The trial court found Mrs. Smith to be "a businesslike, meticulous person * * * far too intelligent and businesslike and meticulous a person ever to have intended that Miss Crowley and Mr. Smith would have to probate this will, this document, J-1, as a will."

The court determined that Mrs. Smith intended the challenged writing to be used as the basis for the preparation of a will, and not as a will itself. In particular, the court found:

Somewhere along the line, J-1 [the challenged writing] came into [the attorney's] possession. I can only conclude, from what I've seen here, that A, it came into his possession quite late. B, when it came into his possession, it was after, well after Mrs. Smith was aware of the formal prerequisites of a will. She'd been to a bank, she knew about a potential problem. She knew you have to go for a lawyer, she knew about waivers, she'd been in the Surrogate's office. She knew all of this and you're talking about an intelligent, meticulous woman who then, inexplicably, makes a will by tearing a piece of paper out of a pad, and that is her will?.

Quite frankly, gentlemen, since I'm obligated to sit as a trier of fact, I find that inconceivable. I'm satisfied, by the highest standard of evidence, namely beyond a reasonable doubt, that Esther Smith never intended J-1 to be her will. That was never her intent. I would have to attribute to her little, if any intelligence, in view of her prior experience, in the probate of her husband's estate, that this was intended as a will. I'm satisfied, by any standard of evidence, even placing the burden upon the Defendants to demonstrate beyond a reasonable doubt, that this is not a will, that the proofs in this case, demonstrate to me beyond a reasonable doubt, that Esther Smith never intended J-1 to be a will. [209 N.J.Super. at 358-59, 507 A.2d 748.]

The Appellate Division determined that the trial court's factual findings were supported by "sufficient, credible evidence." Id. at 359, 507 A.2d 748. We agree. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). Thus, we determine as a matter of fact that the decedent did not intend the challenged writing to be her last will and testament. We part company with the Appellate Division, however, in its conclusion that "even if decedent intended the attorney to prepare a formal will the writing, which satisfies N.J.S.A. 3B:3-3, should be admitted to probate. We are further satisfied that to do so would implement the decedent's probable intent in the absence of execution of a formal will." 209 N.J.Super. at 359, 507 A.2d 748.

We reach our conclusion notwithstanding the concession of the objectors that the document complies with the formal requirements for a holographic will, N.J.S.A. 3B:3-2, and that it represents the decedent's intentions for the disposition of her estate. The narrow question is whether, in the absence of testamentary intent, a writing that would otherwise be a valid holographic will may be admitted to probate as the written expression of the writer's probable intent.

-II-

Except for holographic wills, it is essential that a will be executed in compliance with statutory requirements for formal execution. In this regard, N.J.S.A. 3B:3-2 provides:

Except as provided in N.J.S. 3B:3-3, every will shall be in writing, signed by the testator or in his name by some other person in his presence and at his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

Although the statute does not allude to it, testamentary intent has always been a prerequisite to admission of an instrument to probate. A. Clapp, 5 New Jersey Practice, Wills & Administration § 41 (1982); see also In re Sapery's Estate, 28 N.J. 599, 607, 147 A.2d 777 (1959) (testamentary intent is "the essence of an effective testamentary act"); Combs v. Jolly, 3 N.J.Eq. 625, 627-28 (Prerog.Ct.1835) (testator must so intend for an instrument to operate as a will).

A formally executed will ordinarily declares in its body that it is the testator's last will, a declaration that is generally acknowledged by the attesting witnesses in the attestation clause. Moreover, under the Wills Act, an acknowledgment by the testator and the execution of an affidavit by the attesting witnesses make a will self-proving. N.J.S.A. 3B:3-4 to -6. Thus, the testamentary character of the instrument is manifest on the face of a formal will.

Concerning holographic wills, the Act provides:

A will which does not comply with N.J.S. 3B:3-2 is valid as a holographic will, whether or not witnessed, if the signature and material provisions are in the handwriting of the testator. [ N.J.S.A. 3B:3-3.]

Although the Wills Act recognizes holographic wills as valid, whether witnessed or not, nothing suggests that the Legislature intended to eliminate testamentary intent either for a holographic or for a more formally executed will. To the contrary, the Wills Act contemplates that testamentary intent is a requirement of both forms of wills. N.J.S.A. 3B:3-3 specifically calls for a will, not a mere writing. Furthermore, the definition section, N.J.S.A....