IN THE MATTER OF THE ESTATE OF ALICE M. MALSBERGER (2015-1696, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2751-15T3
IN THE MATTER OF THE
ESTATE OF ALICE M.
MALSBERGER, DECEASED.
————————————————————————————
Submitted March 9, 2017 – Decided July 14, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Burlington
County, Docket No. 2015-1696.
Gary Stewart Seflin, attorney for appellant
Lilia E. Lawler, Executrix of the Estate of
Robert Rich (Trevor C. Serine, on the briefs).
Bernetich, Hatzell & Pascu, L.L.C., attorneys
for respondent Patricia White (Donald F.
Browne, Jr., on the brief).
J. Llewellyn Mathews, attorney for respondent
Emanuel Pratsinakis.
George N. Styliades, attorney for respondents
Dionysis Nicholaou and Anna Nicholaou, join
in the brief of respondent Emanuel
Pratsinakis.
PER CURIAM
The Estate of Robert Rich (appellant) appeals from a February
18, 2016 Chancery Division order admitting to probate the proffered
will (Proposed Will) of Alice M. Malsberger (Alice). We affirm.
I.
The material facts are not in dispute. Alice died on May 26,
2015. Following Alice's death, plaintiff Patricia White, a niece
by marriage, found a handwritten document among Alice's personal
papers in Alice's kitchen. The handwritten documents stated:
I'm Alice Malsberger – I wish to be cremated
upon my death – along with my husband Joe –
our ashes placed in a similar (illegible) and
placed in mausoleum. I wish my estate be sold
& divide in three and 1/3 granted to Fr.
Emmanuel, one third to Patricia White, and one
third to Dionysis & Anna Nicholaou. I want
Pat White to be executrix. I intend to see a
lawyer & to validate everything.
On October 8, 2015, an investigation identified Robert Rich
of Philadelphia as Alice's next of kin and sole intestate heir.
The following week, plaintiff filed a verified complaint in the
Probate Part seeking to admit the Proposed Will to probate. On
December 20, 2015, Rich died. On February 2, 2016, Rich's executor
filed an answer to plaintiff's complaint, disputing plaintiff's
allegations.
All parties agreed the matter did not require discovery, and
the handwriting on the Proposed Will belonged to Alice. After
hearing argument, Judge Paula Dow proceeded to "try the action on
the pleadings and affidavits, and render final judgment thereon."
R. 4:67-5. On February 18, 2016, the judge issued an order
2 A-2751-15T3
admitting the Proposed Will to probate, accompanied by an eight-
page written opinion. In pertinent part, the judge stated:
In the present case, the [c]ourt finds that
[Alice] intended for the handwritten document
to constitute a will and simply intended to
see a lawyer for any procedural formalities
which were lacking.
. . . .
In sum, under analysis of both N.J.S.A. 3B:3-
2(b) and N.J.S.A. 3B:3-3, the [c]ourt finds
that [p]laintiff has met the burden by clear
and convincing evidence of demonstrating that
the purported will was written by [Alice] and
was intended to constitute a valid last will
and testament.
This appeal followed. Appellant challenges the findings and
conclusions of the trial court, asserting the court abused its
discretion by ignoring and misinterpreting the plain text of the
Proposed Will. We disagree.
At issue is whether the Proposed Will sufficiently represents
Alice's final testamentary intent to be admitted into probate
under N.J.S.A. 3B:3-3. Since, as the parties agree, there is no
genuine issue of material fact, the matter was ripe for summary
judgment as involving only a question of law, Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 529 (1995), to which we owe
the motion court no special deference. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
3 A-2751-15T3
A.
N.J.S.A. 3B:3-2 sets forth the technical requirements for
writings intended as wills:
a. Except as provided in subsection b. and in
[N.J.S.A.] 3B:3-3, a will shall be:
(1) in writing;
(2) 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
(3) signed by at least two
individuals, each of whom signed
within a reasonable time after each
witnessed either the signing of the
will as described in paragraph (2)
or the testator's acknowledgment of
that signature or acknowledgment of
the will.
b. A will that does not comply with subsection
a. is valid as a writing intended as a will,
whether or not witnessed, if the signature and
material portions of the document are in the
testator's handwriting.
c. Intent that the document constitutes the
testator's will can be established by
extrinsic evidence, including for writings
intended as wills, portions of the document
that are not in the testator's handwriting.
Appellant asserts that since the Proposed Will contains
Alice's signature at the beginning of the writing, it is invalid.
However, if Alice wrote her name at the beginning of the document
4 A-2751-15T3
and intended it to be her signature, it will suffice. In re Estate
of Siegel, 214 N.J.Super. 586, 592 (App. Div. 1987).
As Judge Dow explained, Siegel is
directly on point in the present case. As the
parties stipulate that there is no issue as
to material fact regarding [Alice's]
handwriting, the [c]ourt finds that [Alice]
intended the opening line, "I am Alice
Malsberger[,]" to serve as a signature to the
document, despite its placement at the top of
the page. Accordingly, under N.J.S.A. 3B:3-
2(b), the [c]ourt finds that the Proposed Will
constitutes a valid will as both the writing
and signature are in [Alice's] handwriting.
B.
A document that does not comply with the requirements of
N.J.S.A. 3B:3-2(a) or (b) is nevertheless valid as a document
intended as a will and may be admitted to probate upon satisfaction
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 case involving New Jersey's codification of the "harmless
error" doctrine, we noted a writing need not be signed by the
testator in order to be admitted to probate. In re Probate of
Will and Codicil of Macool, 416 N.J. Super. 298, 311 (App. Div.
5 A-2751-15T3
2010). To admit a writing into probate as a will under N.J.S.A.
3B:3-3, we held:
[T]he proponent of the writing intended to
constitute such a will must prove, by clear
and convincing evidence, that: (1) the
decedent actually reviewed the document in
question; and (2) thereafter gave his or her
final assent to it. Absent either one of these
two elements, a trier of fact can only
speculate as to whether the proposed writing
accurately reflects the decedent's final
testamentary wishes.
[Id. at 310.]
We are unpersuaded by appellant's challenge to the probate
of the Proposed Will on the ground that "the [d]ecedent did not
intend the document to be her Final Will[,]" but only "the basis
for a subsequent will that would be 'validated' by a lawyer." This
contention overlooks the plain meaning of Alice's written words.
Alice clearly stated her testamentary intent by providing precise
instructions of a testamentary nature, including burial
instructions, the appointment of an executor, and the liquidation
and division of her estate to her designated beneficiaries.
We also reject appellant's argument that Alice's stated
intention "to see a lawyer and to validate everything" precludes
a finding of testamentary intent. We agree with Judge Dow that
Alice's "comments, taken at face value, simply indicate an
intention to visit a lawyer to finalize a document with any
6 A-2751-15T3
required formalities and does not invalidate Alice's present
intention that the Proposed Will constitute a valid will."
For the reasons expressed by Judge Dow in her cogent opinion,
we are satisfied Alice's Proposed Will embodied her testamentary
intention and was properly admitted to probate.
Affirmed.
7 A-2751-15T3