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In re Probate of the Alleged Will and Codicil of Macool

September 16, 2010

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL AND CODICIL OF LOUISE MACOOL, DECEASED.


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Cape May County, Docket No. P-48-08.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 23, 2010

Before Judges Skillman, Fuentes and Gilroy.

In his opening remarks before the trial court, plaintiff's counsel characterized this case as one that "challenges the chancellor." We agree. The facts underlying this case are so uniquely challenging that they have the feel of an academic exercise, designed by a law professor to test the limits of a student's understanding of probate law. But this case is not, of course, a mere didactic exercise.

We are confronted here with the real life story of Louise R. Macool, a woman who sadly died before she had the opportunity to definitively indicate whether the document drafted by her attorney accurately reflected her wishes as to the disposition of her estate. In this context, our task is to determine whether the Chancery Division correctly construed and applied the provisions of N.J.S.A. 3B:3-3.*fn1

After examining the record developed before the trial court, we affirm the court's judgment declining to admit into probate a will that was not reviewed by decedent before her demise. We reject, however, the part of the court's ruling that construes N.J.S.A. 3B:3-3 as requiring that the writing offered as a will under the statute bear in some form the signature of the testator as a prerequisite to its admission to probate. On the question of counsel fees, we affirm the court's decision granting plaintiff's application for fees under Rule 4:42-9(3), but remand for the court to reconsider the amount of the award.*fn2

I.

As correctly found by the trial court, the salient facts of this case are undisputed. Louise and Elmer Macool were married for forty years; this was, for both, their second marriage. Although they did not have biological children together, Louise raised Elmer's seven children from his prior marriage as if they were her own. These children are defendants Muriel Carolfi*fn3 and Michael Macool, as well as James Macool, William Macool, Helen Wilson, Isabel Macool, and Mary Ann McCart. In addition to her seven step-children, Louise also had a very close relationship with her niece, plaintiff Mary Rescigno, whose mother died in childbirth.

Attorney Kenneth Calloway drafted wills for both Elmer and Louise Macool. On September 13, 1995, Louise executed a will naming her husband Elmer as the sole beneficiary of her entire estate, and also naming her seven step-children, step-granddaughter Theresa Stefanowicz,*fn4 and step-great-grandson Alexander Stefanowicz*fn5 as contingent beneficiaries. Elmer Macool was named as executor of her estate, and her stepsons James and Michael Macool were named as contingent co-executors.

On May 23, 2007, Louise executed a codicil to her will naming her stepchildren Muriel Carolfi and Michael Macool as contingent co-executors. Calloway drafted and witnessed both the September 13, 1995 will and the May 23, 2007 codicil.

Elmer Macool died on April 26, 2008. Less than a month later, on May 21, 2008, Louise went to Calloway's law office with the intent of changing her will. Toward that end, she gave Calloway a handwritten note that read as follows: get the same as the family Macool gets Niece Mary Rescigno [indicating address] If any thing happen[s] to Mary Rescigno[,] her share goes to he[r] daughter Angela Rescigno. If anything happen[s] to her it goes to her 2 children. 1. Nikos Stylon

2. Jade Stylon

Niece Godchild LeNora Distasio [indicating address] if anything happe[ns] to [her] it goes back in the pot I [would] like to have the house to be left in the family Macool.

I [would] like to have.

1. Mike Macool [indicating address]

2. Merle Caroffi [indicating ...


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