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In re Probate of

Decided: April 29, 1987.

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 456 (1986).

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

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 (App.Div.1986). We granted certification, 104 N.J. 461 (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 ...


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