The Court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator

   Recently, in the Matter of the Estate of Catherine Hoch, on appeal from the Superior Court of New Jersey, Chancery Division,MercerCounty, Docket No. 09-00532, the Appellate court examined the issue of the probate of a Will with cross-outs and additions. 

   By way of background, the decedent signed a Will datedApril 1, 1999, which included gifts to a niece and a nephew.  The Will also had numerous specific bequests to charitable organizations.  Subsequent to the execution of the Will, the decedent made extensive cross-outs and alterations in handwriting to the Will, some of which revisions dealt with the gifts to the niece and the nephew and the removal of several of the charities.  The residual beneficiary was also changed by her handwriting.  The decedent also changed the name of the document from a last will and testament to a living trust.  On the Will backer, she wrote “Void” and added “Final Living Trust4/20/2002.”

   While in a nursing home, the decedent asked her friend, who was the named executor, to retrieve her Will from her home and bring it to her in the nursing home.  When her friend expressed concern over the handwritten cross-outs and alterations, the decedent told her that she wanted to make these changes and intended them to act as revisions to her Will.  The decedent was not concerned over the effectiveness of her alterations stating that she had initialed the changes.  However, her friend was still concerned and retyped the Will with the revisions which she gave to the decedent.  Thereafter, the decedent reviewed the two documents and agreed that the typed version matched her handwritten changes.  A date was arranged for the decedent to sign the new Will.  Unfortunately, the decedent died before the new Will could be signed.

    The trial judge admitted the April 1, 1999, Will, as altered, into Probate.  The court concluded that clear and convincing evidence, as required by N.J.S.A. 3B:3-3, existed that the decedent intended at the time of her death that the altered document constituted her Will.  The trial judge also limited the award of counsel fees to those contesting probate finding the need for individual representation duplicative.

    The Appellate Division affirmed the admission of the altered Will to probate. 

    The Court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator.  In re Probate of Will & Codicil of Macool, 416 N.J.Super. 298, 303 (App.Div.2010).  In determining the probable intent of the testator, the Court must consider the entirety of the Will in light of the circumstances surrounding its execution.  In re Estate of Gabrellian, 372 N.J.Super. 432, 441 (App.Div.2004), certif. denied, 182 N.J. 430 (2005).  The Court must attempt to do what the testator would have done had he envisioned the litigation.  Ibid.

    The Appellate Division held that the fact that the handwritten additions and excisions were not executed in compliance with N.J.S.A. 3B:3-2 did not prevent admitting the document into probate if the document otherwise complied with N.J.S.A. 3B:3-3.  The proponent of the document must establish by clear and convincing evidence that the decedent intended the document to constitute her Will, a partial or complete revocation of her Will, an addition to or an alteration of her Will or a partial or complete revival of her formerly revoked Will.

    Equally clear is that cross-outs and excisions may operate to revoke only a part of a Will and not necessarily the whole document. N.J.S.A. 3B:3-13. The rest of the Will remains operative.  Ziegler v. Sutphin, 1 N.J.Super. 147, 150 (App.Div.1948).  

    The Appellate Disvion also upheld the award of partial attorneys’ fees.  Rule 4:42-9(a)(3) provides for the awarding of fess under certain circumstances.  Except in weak or meretricious cases, the Court will normally award counsel fees to both the proponent and the contestant in a Will contest.  In re Reisdorf, 80 N.J. 319, 326 (1979).  In order to award attorney’s fees against the estate there must be a showing that the validity of the Will was not only questionable but there was reasonable cause for actually contesting it.  In re Will of Caruso, 18 N.J. 26, 33 (1955).  In order to determine the reasonableness of the requested attorney’s fees, a court must look at (1) the amount of the estate and the amount in dispute; (2) the nature of the dispute; (3) the nature, extent and difficulty of the service rendered; (4) the experience and legal knowledge required and the skill, diligence, ability and judgment shown; (5) the time spent; (6) the results obtained; (7) the benefits to the estate; (8) any special circumstances including the standing of the attorney for integrity and skill; and (9) the overhead expense to which the attorney has been put.  See also RPC 1.5(a).  A fee determination by a trial court will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.  Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001).