Court Admits Will -- Cross-outs and Additions and All -- into Probate

In January 2008, the late Catherine Hoch entered a nursing home where she resided until her death on October 15, 2008. Catherine had a Will dated April 1, 1999, in which she appointed as executrix her childhood friend, Elizabeth Davis. No one disputed that the Will was valid when executed.

What was disputed, however, was its validity after she executed her Will, Catherine made numerous interlineations (that is, cross-outs) and alterations in handwriting to her Will.

In its original form, the Will included bequests to charity and named as its principal beneficiaries Catherine's nephew and niece, who were not heirs at-law should she have died intestate (without a will), as her two heirs were her surviving brothers Robert and Ronald Hoch. Robert had two children, Robert, Jr., and Leslie.

Specifically, Article Five in Catherine's Will gave Robert Jr. a right of first refusal to purchase her home for $50,000, with the proceeds of the sale going into Catherine's estate, and if Robert declined that opportunity, the same offer was to be extended to his sister, Leslie.

Article Six directed that all stocks, bonds, and other securities be sold and the proceeds divided equally between her nephew and niece. Article Seven made specific devises of $5,000 each to her nephew, niece and longtime friend, Elizabeth Davis. The residuary estate in Article Eight was devised equally to Robert, Jr. and Leslie.

Finally, in Article Seven, $10,000 was devised to the Hopewell Valley School District, with interest from the bequest to be used for annual student awards. In the same Article, Catherine made devises of $5,000 each to some thirty-six named entities, all of which appear to be civic, social and/or charitable organizations.

Catherine's handwritten revisions are extensive. In part, they void the specific and residuary bequests to her nephew and niece, and add to the end of Article Twelve:

"Robert [Jr.] and Leslie have already received millions from Herbert and the House [t]hat was [su]pposed to be mine."

In Article Seven, twelve of the original charitable institutions are crossed out and "Howell Farm [$]10,000" is added. In Article Eight, "Hopewell Museum" is substituted for Robert, Jr. and Leslie as devisee of Catherine's residuary estate.

Elizabeth Davis profferred the Will to a probate court in New Jersey. The Will was admitted and she was appointed executrix.

Catherine's brother Robert and Ronald and her nephew and niece Robert Jr. and Leslie contested the admission of the Will.

Elizabeth Davis was the lone witness at trial. In late January or February 2008, she testified, while at Care One Catherine told her that she had a Will at home, told her where it was located, and asked her to bring it to the nursing home.

Elizabeth did so. When Elizabeth expressed concern over the handwritten cross-outs and alterations, Catherine remarked that she wanted to make these changes and, in fact, intended the handwritten notations to act as revisions to her Will. She did not share her friend's concern over the effectiveness of the altered Will because she had initialed the changes.

Elizabeth suggested that Catherine have the Will retyped incorporating the changes, and brought it to her to sign. Catherine consented, reviewed the document, and approved it.

However, before she could execute it, Catherine suffered a heart attack and died.

At the close of evidence, the judge found Elizabeth Davis' unrefuted testimony to be "credible, clear and convincing[,]" noting:

"Elizabeth Davis will reap no personal gain if the relief she seeks is granted. Plaintiff will not be a beneficiary under the [W]ill in the form in which it is sought to be probated because a $5,000.00 bequest to her contained in the original version is crossed out and is one of the revisions that Plaintiff seeks to have approved as valid . . . [Further], Plaintiff [will] be entitled to the same commission whether or not the [W]ill is probated."

The judge admitted the April 1, 1999 Will, as altered, into probate, holding the interlineations appearing thereon to be "a revocation of only those words physically affected by them" and "the handwritten additions to the [W]ill . . . valid alterations to the [W]ill." As to the former, the judge reasoned:

"[T]he pattern of the interlineations demonstrates an intent that only certain portions of the document in its original form be cancelled. . . . [C]are was taken to strike out specific portions of the [W]ill, but to leave others untouched and plainly legible. The clear impression given by the markings . . . is that decedent intended that certain portions remain effective. Also of note is the fact that none of the signatures are affected by the cross-outs."

As to the latter, finding that the original Will was never revoked as a whole, the judge concluded that decedent intended the additional handwritten language to be deemed a valid and effective alteration of the Will. Otherwise, the court reasoned, "[i]f the [d]ecedent did not want [the document] to constitute her will as altered, it would seem unlikely that she would have preserved it, rather than having disposed of it or destroyed it."

In fact, the "placement of [decedent's] signature and a note to confirm her review of [the document] on September 23, 2007, constitutes evidence of the [d]ecedent's intent that [the document] remain a valid, legally effective instrument." Accordingly, the court ultimately concluded that: "the evidence is clear and convincing, as required by N.J.S.A. 3B:3-3, that the [d]ecedent intended at the time of her death that [the document], as altered, constitute her last [W]ill . . . ."

The two brothers and nephew and niece disagreed and sought review by the New Jersey Court of Appeals. That court summarily dismissed the appellants' contentions that the April 1, 1999, document as altered was not Catherine's last Will and thus that she died intestate, noting:

"After all, a court's duty in probate matters is to ascertain and give effect to the probable intention of the testator .... Courts must put themselves in the testator's position and attempt to do what the testator would have done had he envisioned the present inquiry."

Here, Elizabeth Davis' testimony is clear and unequivocal that Catherine intended the April 1, 1999 document, with its alterations and cross-outs, to be her last Will. Her testimony is not only unrefuted, but corroborated by the fact that Catherine preserved the document rather than having destroyed or otherwise disposed of it.

Equally clear, said the appeals court, is that cross-outs and excisions may operate to revoke only a part of a Will and not necessarily the whole document. In other words, cancellation of a part of a Will with the intention to revoke operates to revoke only the part cancelled. The rest of the Will remains operative. Here, again, the proof was compelling, and undisputed, that the interlineations by Catherine were intended to revoke only those portions so physically excised with the remainder to have continuing force and effect.

Estate of Catherine R. Hoch, April 23, 2012.

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