This is not a Florida case. It's the story of a woman in New Jersey who wanted to change her will after her husband died. Sadly, fate intervened. A will contest ensued. An appeal followed that. And the decision, which came down last week, includes some good information on handwritten notes and drafts of wills.

The story starts with the woman, L.M., marrying for the second time. She and her husband were together for 40 years and raised his seven children. She also had a close relationship with her niece, whose mother had died in childbirth. L.M. and her husband were careful to keep their wills updated over the years. L.M. named her husband as sole beneficiary of her entire estate and the step-children and some of their kids as contingent beneficiaries.

About a month after her husband died In 2008, L.M. visited her attorney with some handwritten notes on how she would like her will changed. The notes added a couple of beneficiaries, among them her niece, and indicated that L.M. wanted the house to stay in her husband's family. She met with the attorney, discussed the changes, and he dictated -- in her presence, he claimed -- a new will. As his secretary was typing up the draft, L.M. left the office for lunch. She died an hour later.

The question before the court was whether the handwritten notes and the draft will (which had "rough" written across the top, to indicate it was a rough draft) superseded the will on record. New Jersey statute allows the admission of a will that isn't executed in the normal fashion (signed, witnessed, etc.) if the person arguing for its validity can prove that the decedent intended the document to be his or her will. The proof must be clear and convincing.

The trial court did not accept that the rough draft was L.M.'s will. There were too many questions, especially following the testimony of the attorney who drafted it, for the court to do what a court does in a probate case: "to ascertain and give effect to the probable intention of the testator."

The appellate court agreed. The rough draft, even taken in conjunction with the handwritten notes, did not constitute a "holographic will." A holographic will can be handwritten, but it still must be signed by the testator (in this case, L.M.) and signed by two other people. In this case, the rough draft was not signed, even if it did reflect L.M.'s discussion with her attorney.

In the end, the Court of Appeal held that a writing like the draft can only be admitted into probate if there is clear and convincing evidence that the decedent actually reviewed the document and gave his or her final assent to it. If L.M. had had the chance to review the draft, and to indicate her acceptance of it, it may have been valid. As it was, she died before she could look at it.

Again, this is not a Florida case. If you live in Florida and have a question about a probate matter, you should consult a local attorney. But L.M.'s story does illustrate how a probate court approaches a will dispute, and how little things can make such a difference in the outcome of such a case. It's also a sad tale of "if only."

Resource: Superior Court of New Jersey, Appellate Division "In the Matter of the Probate of the Alleged Will and Codicil of Louse Macool, Deceased" 9/16/2010