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In re Probate of

Decided: April 17, 1986.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF ESTHER SMITH, DECEASED


On appeal from the Superior Court, Law Division-Probate Part, Somerset County.

Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).

Stern

This appeal requires us to decide whether a writing signed by decedent Esther Smith should be admitted to probate as a holographic will pursuant to N.J.S.A. 3B:3-3. Under that statute, a will "is valid as a holographic will, whether or not witnessed, if the signature and material provisions are in the handwriting of the testator."

Shortly after her husband's death in March 1984, decedent delivered a document, handwritten and signed by her, to the attorney for her late husband's estate. There is no contention that the writing does not meet the formal requirements of the statute. The writing in its entirety reads as follows:

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.

s/ Esther L. Smith

492 Mountainview Dr.

No. Plainfield, N.J.

07063

The stepdaughter and stepson are children of decedent's late husband by a previous marriage. Decedent's husband had left his entire estate to her; the attorney to whom she delivered the writing represented the estate. Mrs. Smith died on October 24, 1984. Probate is challenged by decedent's heirs who would take by intestacy.

During the hearing on the complaint for probate, the attorney and stepdaughter testified. The latter indicated the good relationship between decedent and Ms. Crowley, Mr. Smith and their families. The attorney was 84 at the time of the hearing and retired from the practice of law. He stated that decedent "gave me this document and said this is my will, this is how I want my estate to go." She further "told me at that if she's going to make any changes, she would let me know." She never subsequently made any changes nor asked for a draft of a formal will.

At the time decedent delivered the document to the attorney, he asked her who she wanted to serve as executor. Decedent indicated that David Smith should so act, and the attorney made a notation to that effect on the face of the writing. On cross-examination, the attorney stated that decedent told him "Harry, this is my ...


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