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In re Probate of the Alleged Will of Conti


February 9, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, No. P-420-08.

Per curiam.


Submitted January 6, 2009

Before Judges Wefing, Yannotti and LeWinn.

The trial court entered an order denying probate to a document which had been offered as the Last Will and Testament of Mario Conti, who died on June 17, 2007, a resident of Montague, New Jersey.

Conti was eighty years old at the time of his death. He had never been married and did not leave any immediate family. It was uncertain whether Conti left a Last Will and Testament, and the court appointed David L. Johnson, Esq., as the administrator of his estate. Thereafter, Mark Imbrie, a psychologist whom Conti had consulted periodically, produced a twenty-page handwritten document that Conti had delivered to him for safe-keeping several years prior to his death. The first sheet was headed "Covering Note" and commenced in the following manner:

I, Mario Conti, of Montague, New Jersey, hereby certify that the following papers are copies of my handwritten originals, constituting a declaration of my Last Will and Testament, Living Will, and Powers of Attorney. The bearer of these papers, Mark Imbrie, of Newton, New Jersey, has known me for many years and is well acquainted with my outlook, values and concerns, and with my intent in the matters at hand. I have therefore entrusted him to arrange to have these papers formally prepared by an Executor with due haste for admission to probate, in the adverse event that, because of unavoidable delays, I shall not have had the opportunity to do so myself.

The "Covering Note" was followed by a sheet headed "Last Will and Testament." It provided for the appointment of an executor, but left the name blank, with an indication that Imbrie was to select who was to serve as executor. The document was divided into various "Parts"; "Part I" left $15,000 to his executor and $5,000 to Mark Imbrie, to be used for the care of Conti's surviving pets; "Part II" left his brokerage accounts, in equal shares, to the following organizations: Mid Hudson Animal Aid, Inc.; Alley Cat Allies; Lakeland Animal Haven; Last Post; California Feline Foundation; Elmsford Animal Shelter; Concern for Helping Animals in Israel; Russian American Society for Protection of Animals; Australia Animal Protection Society; Compassion for Camden; Cause for Paws; Native American Rights Fund; and National Humane Education Society; "Part III" left his real estate to Associated Humane Societies, Inc.; "Part IV" left his personal property to the Salvation Army in Port Jervis; and "Part V" left his federal life insurance benefits and lump sum death benefits to Concetta Conti, widow of his deceased brother. Following this was a list of pertinent information, account numbers, insurance policies, etc. The concluding sheet was headed "Living Will."

All of the sheets were entirely in Conti's handwriting, with the exception of a notary's seal and signature on the second sheet. The document was notarized in Pennsylvania, where Conti took it after he completed writing it. There is no indication in the record why Conti elected to have a notary place her stamp and seal and why he elected to do so in Pennsylvania (other than its geographic proximity). There was no jurat or acknowledgement, simply the notary stamp and her signature.

Johnson, the court-appointed administrator, offered these documents for probate as a holographic will. After a hearing, the trial court denied probate because it was not executed in accordance with the laws of Pennsylvania.*fn1

Associated Humane Societies, Inc., has appealed from this order. Three cousins once removed of Conti's, who did not participate below, have submitted a brief urging that we affirm the trial court's order.

We do not reach the merits of the trial court's decision, however, because of a development which occurred after the proceedings below and after the parties had filed their briefs with this court. We granted a motion to supplement the record, which now contains a letter from the administrator to all the parties, advising them that in the course of cleaning out the decedent's house, a Will that he executed on May 21, 1976, had been located. This document appeared to have been executed in accordance with N.J.S.A. 3B:3-2(a), but at the bottom the following handwritten addendum had been added in Conti's handwriting:

To Whom it May Concern:

I, Mario A. Conti, currently of 44 Red Hill Road, Montague, NJ 08827, being of sound mind and memory, hereby revoke this will in anticipation of acceptance by the Courts of my new holographic will in the custody of Dr. Mark Imbrie of Newton, NJ.

Mario A. Conti


The trial court did not have an opportunity to consider the effect of this discovery, and we decline to pass upon it in the first instance. We thus remand this matter to the trial court for further proceedings. We do not retain jurisdiction.


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