In Re Probate Of Will And Codicil Of Macool

3 A.3d 1258 (2010)

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Nature of the Case

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Facts

Louise Macool died before she had the opportunity to definitively indicate whether the document drafted by her attorney accurately reflected her wishes as to the disposition of her estate.

Louise and Elmer Macool were married for forty years. Louise raised Elmer's seven children from his prior marriage as if they were her own. These children are Muriel Carolfi and Michael Macool, as well as James Macool, William Macool, Helen Wilson, Isabel Macool, and Mary Ann McCart (Ds). In addition to her seven step-children, Louise also had a very close relationship with her niece, Mary Rescigno (P), whose mother died in childbirth. On September 13, 1995, Louise executed a will naming her husband Elmer as the sole beneficiary of her entire estate, and also naming her seven step-children, step-granddaughter and step-great-grandson Alexander Stefanowicz as contingent beneficiaries. Elmer was named as executor of her estate, and her stepsons James and Michael Macool were named as contingent co-executors. Elmer died on April 26, 2008. Less than a month later, on May 21, 2008, Louise went to the law office with the intent of changing her will. Toward that end, she gave Calloway a handwritten note that read as follows: 'get the same as the family Macool get Niece Mary Rescigno indicating address If anything happens to Mary Rescigno, her share goes to her daughter Angela Rescigno. If anything happens to her, it goes to her 2 children. 1. Nikos Stylon 2. Jade Stylon.' The lawyer dictated the entire will while she was there. A draft version with the word 'Rough' handwritten on the top left corner of the document was prepared. It had not been reviewed by the attorney to make changes. The draft will names as residuary beneficiaries Louise's nieces P and Lenora Distasio, as well as all of her step-children, Theresa Stefanowicz, and Alexander Stefanowicz. It does not provide a statement naming Angela Rescigno's two children as contingent beneficiaries of Rescigno's share of the estate. In addition, the draft makes only an oblique reference to the provision in the handwritten document to keep the house 'in the family Macool,' stating that 'Michael Macool, Merle Caroffi, and William Macool be responsible to maintain . . . and to try to keep the home in the family as long as possible.' Louise died approximately one hour after the meeting. She thus never had the opportunity to see the draft will. P sought to admit the draft will into probate. The court held that the will would not qualify under N.J.S.A. 3B:3-3. The court held that Louise intended to change her will but that there was not clear and convincing evidence that the rough draft was intended to be her will.