New Jersey has a very liberal standard for admitting writings intended as a Last Will and Testament. I was once involved in a case where a document – begun as grocery list but which transitioned into a statement of what was to happen with the individual’s estate – was admitted to probate.
We wrote previously about the scope of N.J.S.A. 3B:3-3, which provides:
Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.A. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will … .
In a sad case out of Australia, an unsent text message that included the words “my will” and a smiley face was admitted to probate.
The 55-year-old man took his own life in October last year and the unsent text message was found on his phone the following day.
He wrote that his brother and nephew should “keep all that I have house and superannuation, put my ashes in the back garden”.
He said his wife should “take her stuff only she’s … gone back to her ex AGAIN I’m beaten”.
The man gave his bank details before signing off “my will” with a smiley face.
The Australian judge found that “‘the informal nature of the text’ did not exclude it from being treated as representing the man’s intentions.”
This result could never happen in New York where practitioners look askance at the extent to which writings intended as Wills are admitted to probate on the New Jersey side of the Hudson. Could such a result be reached in New Jersey?
As we wrote previously about the Ehrlich decision, a writing intended to be a Will can be admitted to probate where there is clear and convincing evidence that the “document” was reviewed and assented to by decedent and accurately reflects his final testamentary wishes. The question becomes whether a “document or writing added upon a document” can include something written on a smartphone. Stay tuned.