Probate Litigation - New Jersey Codicil Not Out (for Blood)

Monday, October 29, 2018
Pursuant to the New Jersey Wills Act, a will must be in writing, signed by the testator – or by some other person in his or her presence and at his or her direction – and signed by at least two witnesses to either (1) the signing of the will or (2) the testator’s acknowledgement of that signature or acknowledgement of the will.


In the alternative, pursuant to N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, a noncompliant document may suffice if the signature and material portions of the document are in the testator’s handwriting or if the proponent of the document can establish by clear and convincing evidence that the decedent intended the document to constitute his or her will.

In a recent, unpublished decision, the Superior Court of New Jersey, Appellate Division applied N.J.S.A. 3B:3-3 to a dispute concerning a holographic codicil to a will drafted by the scrivener/testator. In In the Matter of the Will of E. Warren Bradway, on the same day that his life partnership officially terminated, Bradway drafted a one-page codicil to his will which directed that all references to his ex-partner be replaced with the name of his new partner – in a bizarre twist, Bradway wrote the codicil using his own blood as ink!

Upon Bradway’s unexpected death, the estate filed an action in the Chancery Division, Probate Part to admit his will and codicil to probate. The decedent’s ex-partner soon filed an answer and counterclaim, contesting the validity of the holographic codicil. In May of 2017, a bench trial was conducted in which DNA and handwriting experts on behalf of each party opined as to the source of both the handwriting and blood on the document. Most importantly, both handwriting experts opined that the handwriting in the body of the codicil was the decedent’s handwriting and, although the DNA experts did not have a DNA sample from the decedent, they compared blood provided by the decedent’s two brothers and opined that the blood came from a full-sibling of the decedent’s brothers. At the conclusion of the contestant’s experts’ testimony, the estate moved for a directed verdict. In granting the estate’s motion, the trial court reasoned that, even without analyzing the signature on the codicil, the handwriting and content of the codicil clearly and convincingly established the decedent’s intent to alter his will. Thus, pursuant to N.J.S.A. 3B:3-3, the trial court entered an order of judgment admitting the will and codicil to probate.

On appeal, the Appellate Division analyzed N.J.S.A. 3B:3-2 and N.J.S.A. 3B:3-3, and, for purposes of the motion, similarly accepted the contestant’s position that the codicil was unsigned at the time of death. As a document or writing need not be signed by the testator to be recognized as a will or codicil under N.J.S.A. 3B:3-3, the question addressed was whether there was clear and convincing evidence that the decedent intended the codicil to alter his will. The Appellate Division agreed with the trial court that evidence of the decedent’s clear and convincing intent was established by the codicil itself; specifically, the codicil used language showing a clear intent to be a freely attested-to codicil, the codicil contained identifiers that clearly and convincingly established that the decedent intended to alter his will, and that the codicil was prepared using the scrivener’s own blood added support to the other clear and convincing evidence. Thus, the decision of the trial court was affirmed.

The drafting and execution of a will is extremely technical and should not be undertaken by a layperson without the assistance of a qualified estate planning attorney. Although numerous forms of fill-in-the-blank and do-it-yourself kits can be obtained with a few clicks of your mouse, you should never draft a will or codicil without proper assistance. Even if the document is admitted to probate, the scrivener has most likely created ambiguity or has failed to include any number of provisions which will have unintended and unexpected consequences on his or her estate. Additionally, any ambiguity in the document or, as in Bradway discussed above, any opportunity for dispute that is left open for a disgruntled party will most certainly lead to costly and protracted litigation. There are far too many problems that could arise if the document is not properly prepared and executed – the disposition of your estate is far too important to jeopardize by not seeking the assistance of a qualified attorney. In the event that you insist on preparing your own document, at the very least, please use ink!


Please do not hesitate to direct questions or comments to John M. Loalbo at (973) 966-3239 or, or Justin M. Smigelsky at (973) 966-3202, or


Estate planning, administration, and litigation require particular knowledge. The Probate Litigation Practice Group at Windels Marx – offering a unique skill set with extensive experience in trusts and estates planning, probate litigation, and tax matters – represents parties in contested trust and estate matters in Probate Courts throughout the U.S. You may wish to consult with an attorney with such experience if you have questions regarding the probate process, your rights and obligations in the administration of an estate or trust, fiduciary duties relating to an estate or trust, or the feasibility of contesting a will or defending against a will contest.


Please take note that this article is for information purposes only and was drafted with reference to New Jersey law. In some jurisdictions, this material may be deemed as attorney advertising. Past results do not guarantee future outcomes. Possession of this material does not constitute an attorney / client relationship.