The Doctrine of Substantial Compliance and Writing Intended as a Will

In The Matter of the Estate of Blackwell, Superior Court of New Jersey, Appellate Division, Docket No. A-4816-08T34816-08T3, the Court examined the issue of substantial compliance with regard to the purported Last Will and Testament of Albertha Blackwell.

Here, the document at issue was entitled “Last Will and Testament of Albertha Blackwell.” The body of the Will is five (5) pages, each of which bears a signature in the left-hand margin. The last page also bears a second signature. However, the Will is not dated, nor does it have an attestation clause. Page six (6) contained language similar to a self-proving affidavit and was signed by two (2) witnesses and notarized by an attorney. But, the acknowledgment is not dated.

Pursuant to N.J.S.A. 3B:3-2, a Will shall be in writing; signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and signed by two (2) witnesses. However, a Will may be admitted to probate under circumstances where it does not literally comply with the statutory requirements if substantial compliance exists. Or, a document not in strict compliance with 3B:3-2 may be admitted to probate if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s Will. N.J.S.A. 3B:3-3. Clear and convincing evidence is “that which ‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,’ evidence “so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”

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