Unexecuted Will Admitted to Probate

Capehart Scatchard’s Thomas D. Begley, III obtained a significant decision in the Superior Court of New Jersey when he successfully argued that an unexecuted Will of a Burlington County resident be admitted to probated.

In February 2012, SalvatoreVarsaci consulted with an attorney to revise his Will.  The Will was drafted and sent to him for review.  On March 7, 2012, he contacted his attorney to let him know that he reviewed the Will and was satisfied with its contents.  He was scheduled to sign the Will on March 19.  However, he never signed that Will, as he died suddenly on March 13.

The longstanding legal standard to admit a Will into probate is that it must be typed and executed by the testator in the presence of two witnesses (unless it is solely in the handwriting of and signed by the testator).  Until recently, this law was strictly enforced.

The success in this case arose from the change in the State’s probate code in 2005, which acknowledged that testamentary writings could be admitted to probate if they “substantially complied” with the statute.  In 2010, an attorney, in reliance upon the revised code, attempted to introduce to probate an unexecuted copy of a Will to probate.  His application was denied.  However, the Appellate Division stated that circumstances might arise allowing for same.

On August 3, 2012, Begley argued and the Court agreed that such circumstances existed in this case.  In allowing Salvatore’s unexecuted Will to probate, the Court determined that Begley presented clear and convincing evidence that: (1) Salvatore had reviewed the Will prior to his death and (2) assented to its terms.

When asked about the decision, Begley commented, “Of course, all of us should strive to prepare our Wills in a customary fashion with the guidance of a competent estate planning attorney.  Having said that, I am gratified that our firm was arguably the first in the State to have such a previously unexecuted document admitted to probate.  Having known Salvatore Varsaci for many years, I am happy to know that his wishes will be observed.”


 Should you have any questions or would like more information, please contact Tom at 856.914.2085 or by e-mail at tbegley@capehart.com.

This blog is designed to provide general information on the topic presented and is provided with the understanding that the author is not rendering any legal or professional services or advice. This blog is not a substitute for such legal or advice. If such services are required, you should retain competent legal counsel.



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