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In re Probate of Will of Bernard Nassano

Decided: March 8, 1985.

IN THE MATTER OF THE PROBATE OF THE WILL OF BERNARD NASSANO, DECEASED


Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Greenberg, P.J.A.D.

Greenberg

This matter comes on before this court on appeal from a judgment of the Probate Part of the Superior Court, Law Division, denying the admission of a will to probate.

The decedent, Bernard Nassano, was never married and had no children. On November 10, 1978, he executed an original and one copy of a will designating certain charitable organizations and individuals, none of whom was related to him, as beneficiaries. The will was prepared by an attorney who was named as co-executor. The original will was retained by the attorney but Nassano kept a fully executed duplicate.

Subsequently Nassano inscribed the following handwritten words below the signature line on the duplicate of the will. "This Will, and all other Wills Made by me are Null and Void Signed by me this Seventh Day of June 1979 Bernard Nassano June-7-1979 BN BN." On the backer of the duplicate copy decedent wrote "This Will and all other Wills (Made By Me) are Null & Void Bernard Nassano June-7-1979 BN." While there is no evidence as to when Nassano wrote this additional language there is no reason to believe that it was not on June 7, 1979.

Nassano died on August 18, 1982 without having executed any further will. Subsequently the November 10, 1978 duplicate copy of the will with decedent's handwritten inscription was found. On September 1, 1982 the attorney Nassano designated as co-executor filed a complaint seeking to probate the will in solemn form and obtained an order directed to the beneficiaries under the will and to certain of Nassano's relatives requiring them to show cause why the will should not be admitted to probate and letters testamentary issued to the executors. See R. 4:84-1(b). The relatives were named because of the possibility that Nassano died without a valid will thus giving rise to the chance of intestacy.

Subsequently the State of New Jersey was permitted to intervene as a party. The State claimed an interest in the

matter because in its view Nassano had died intestate without any relative entitled to take his property under N.J.S.A. 3B:5-4. Thus the State considered that Nassano's estate had escheated.

The matter of whether decedent had validly revoked his will came on before the court on cross-motions for summary judgment. After hearing arguments the motion judge delivered an oral opinion that Nassano's will had been duly executed but he had written and signed the language declaring it null and void with the intention to revoke or withdraw its force and effect. The judge held as a matter of law that Nassano's words though written on the duplicate copy revoked the will. The judge, however, made no resolution of the issues regarding possible escheat of the estate. A judgment of April 18, 1984 reflected his opinion. Certain of the beneficiaries named in the will have appealed from that judgment.

On this appeal appellants contend that respondents have the burden to show that Nassano revoked the will. Appellants assert that Nassano's writings did not revoke the will. They further contend that when Nassano wrote the words his mental capacity may have been impaired. Finally they assert that Nassano would not have intended the will to be revoked if he knew that his estate would escheat to the State.

N.J.S.A. 3B:3-13 provides that a will may be partially or completely revoked:

a. By a subsequent will which revokes the former will or part expressly or by inconsistency; or

b. By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking by the testator or by another person in ...


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