UNSIGNED WILLS CAN BE PROBATED, BUT WHY TAKE THAT CHANCE, AS THE MACOOL CASE SHOWS!

Until only a few years ago, wills had to be reviewed and signed to be accepted or probated as valid documents.  That changed in 2009 when I successfully obtained court approval to probate my client’s unsigned will where the client met with me in the hospital, explained what she wanted to be included in her will, provided me with draft notes of her intentions, but she passed away a few days later before she could review or sign the will that I drafted for her signature.  (LINK to website update/article).

In the recent NJ appellate court case In Re Macool which was decided in late 2010, the court ruled that a draft will that was neither reviewed nor signed by the client before she died could not be admitted to probate.  In theMacool case, the appellate court ruled that the unsigned will, which was prepared by the decedent’s attorney and marked as a “rough draft”,  would not be admitted to probate because the party seeking probate had not proven by clear and convincing evidence that the decedent actually reviewed the will and approved it.  The court concluded that the unsigned “rough draft” could have been a “work in progress” and that the court could not know whether the decedent would have approved the content of the draft will as bearing her true intentions.

In my case which approved the probate of the unsigned will in Cape May County Probate Court, the will that I prepared for my client was not marked as a “rough draft” but instead was typed consistent with the client’s instructions and brought to the hospital for my client to review and sign.  Although my client did not have the strength to sign the will because she was suffering from end-stage cancer, she was able to nod her head vigorously in response to the question of whether she “wanted the will” that I brought to her.  When I presented these facts to the Probate Court, the court agreed that I had shown by clear and convincing evidence that my client approved the will and likely would have signed it if she had the strength to do so.

The Macool decision shows that there are limits as to how far probate courts will stretch to probate unsigned wills.  Courts will not approve the probate of unsigned wills absent “clear and convincing” evidence that the decedent actually approved the will, and likely would have signed it if death had not prevented the signing.

Although I was able to present such evidence in my Cape May County unsigned will case, many unsigned wills – like in the Macool case – will not be approved for probate, which will result in many unfulfilled estate plans.  Signed wills have a much greater chance of being probated than unsigned wills.  And even if a probate judge can be convinced to probate an unsigned will, the process of going to court will cost substantially more than the typical probate of a will with the County Surrogate’s Office.

The lesson here is to meet with an estate planning attorney sooner rather than later to get those wills and other related documents SIGNED!