## Facts

- Louise R. Macool executed a will in 1995 leaving her estate to her husband, with his descendants as contingent beneficiaries, and executed a codicil in 2007.
- After her husband died in April 2008, Macool met with her attorney in May 2008 to change her will and brought handwritten notes indicating intended revisions, including adding her niece, Mary Rescigno, and keeping the home in the Macool family.
- After the meeting, the attorney prepared an unexecuted draft will based on the meeting and notes; it was described as rough and differed from the notes in material ways.
- Macool died before returning to review, approve, or execute the draft; there was no evidence she saw it or that it was read to her.
- The 1995 will and 2007 codicil were admitted to probate; Rescigno sought to invalidate them and to admit the draft under N.J.S.A. 3B:3-3.
- The trial court refused to probate the draft, reasoning both that intent was not shown and that N.J.S.A. 3B:3-3 required the testator’s signature; it also awarded Rescigno counsel fees but reduced the requested amount.
- Rescigno appealed the probate ruling and fee reduction; the stepchildren cross-appealed the fee award.

## Issues

1. Whether an unreviewed, unapproved, unexecuted attorney-prepared draft can be admitted to probate under N.J.S.A. 3B:3-3 based on evidence the decedent intended to change her estate plan.
2. Whether N.J.S.A. 3B:3-3 requires the writing offered for probate to bear the testator’s signature.
3. Whether counsel fees were properly awarded, and whether the amount required reconsideration.

## Decision

- Affirmed denial of probate for the draft will because the record lacked clear and convincing evidence that Macool intended that specific draft to be her will.
- Reversed the trial court’s statutory interpretation to the extent it imposed a signature prerequisite under N.J.S.A. 3B:3-3.
- Affirmed the award of counsel fees in principle but remanded for reconsideration of the amount.

## Legal Principles

- Under N.J.S.A. 3B:3-3, a writing not executed in compliance with will formalities may be treated as a will only upon clear and convincing evidence that the decedent intended the writing itself to constitute the will (or codicil, alteration, or revocation).
- Evidence that a decedent intended to change a testamentary plan is insufficient; the required intent must be tied to the particular document offered for probate as the final testamentary act.
- N.J.S.A. 3B:3-3 does not impose a categorical requirement that the proffered writing contain the testator’s signature; the focus is on provable testamentary intent, not formal execution.
- Counsel fees in probate litigation may be awarded in the court’s discretion under applicable court rules, and the amount must be supported by a sound exercise of discretion.

## Conclusion

The court held that New Jersey’s harmless-error statute can excuse noncompliance with execution formalities, including the absence of a signature, but it cannot substitute for clear and convincing proof that the decedent adopted the specific writing offered as her final will; because the decedent never reviewed or manifested assent to the attorney’s draft, the earlier will and codicil controlled, and the matter was remanded only to reassess the counsel-fee amount.


In re Probate of Will & Codicil of Macool, 416 N.J. Super. 298, 3 A.3d 1258 (N.J. Super. Ct. App. Div. 2010)