IN THE MATTER OF THE ESTATE OF ALICIA A. HEFFLEY, DECEASED

 

(NOTE: The status of this decision is Published.)

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
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     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1025-16T3


IN THE MATTER OF THE ESTATE
OF ALICIA A. HEFFLEY, DECEASED.
___________________________________

           Argued May 15, 2018 – Decided May 29, 2018

           Before Judges Fisher and Natali.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Gloucester
           County, Docket No. 16-0151.

           David C. Clark, appellant, argued the cause
           pro se.

           Lynda L. Hinkle argued the cause for
           respondent The Estate of Alicia A. Heffley,
           Deceased (The Law Offices of Lynda L. Hinkle,
           LLC, attorneys; Lynda L. Hinkle, on the
           brief).

           Marc A. Krefetz, Deputy Attorney General,
           argued the cause for respondent Unclaimed
           Property Administration (Gurbir S. Grewal,
           Attorney General, attorney; Melissa H. Raksa,
           Assistant Attorney General, of counsel; Marc
           A. Krefetz, on the brief).

PER CURIAM

     David C. Clark appeals from an order of the Chancery Division

denying the admission to probate of a November 21, 2015 holographic
writing alleged to be the last will and testament of Alicia A.

Heffley.   We affirm.

     We glean the following facts from the trial record.           Heffley

died on January 17, 2016 and was predeceased by her husband.                  No

children were born of the marriage and Heffley had no known

relatives.

     Heffley shared a close and congenial relationship with her

neighbors, which included David and his wife LaNeta.1           They spoke

frequently, socialized together and David assisted Heffley with

household maintenance such as grass cutting and snow shoveling.

When Heffley died, they handled her funeral arrangements.

     The Clarks filed a complaint and obtained an order to show

cause in the Chancery Division seeking to admit the November 21

writing to probate as Heffley's last will and testament.2          Heffley

handed the document, signed "A.J.",3 to LaNeta, with a check for

$100,   shortly   after   a   birthday   party   for   the   Clarks'     adult

daughter, Stephanie.




1
   We refer to appellant and his wife by their first names in the
interest of clarity. We intend no disrespect by this informality.
2
   LaNeta, a party in the trial proceedings, has not joined in
this appeal.
3
   The trial record establishes that Heffley referred to herself
as "A.J."

                                    2                                  A-1025-16T3
      A one-day trial took place in the Chancery Division before

Judge Anne McDonnell.       David, LaNeta and two additional witnesses,

Terry McCulley and Thomas Kuss, testified.

      The     testimony    established       that   Heffley   was     intelligent,

competent to execute the November 21 writing and that she prepared

it.   For example, McCulley described Heffley as "highly educated";

Kuss testified that she "talked smart"; and David stated that

Heffley was "very smart and intelligent."

      LaNeta confirmed that Heffley always kept a neat and tidy

home, took care of her own bills and was not under a doctor's

care.    Similarly, David testified that Heffley made all of her

appointments and was not in need of any care at the time of her

death.      Finally, LaNeta, David and McCulley confirmed that Heffley

was   the    author   of   the   November     21    writing   based    upon   their

recognition of her signature or writing style.

      The November 21 writing consists of five handwritten pages

and is addressed to "Dave, Niccki and Stephaine [sic] and all who

has helped A.J. out."4       After reviewing the letter, to "get a sense

of how it flowed," Judge McDonnell fastidiously detailed its

contents.      She acknowledged that the writing possessed a certain

formality as Heffley "spoke of herself in the third person."



4
    At trial, LaNeta was also referred to as "Nicki."

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     As to its contents, the trial judge noted that the writing

repeatedly offered words of encouragement and thanks to David and

his family for being kind and good neighbors.           It also detailed

Heffley's angst over the cost of living in New Jersey, her love

of waterfowl and her desire to move to either an assisted living

facility or nursing home in Reno, Nevada.        Heffley also discussed

selling her home and moving into a condominium:

            Considering my place was just appraised at
            $60,000 I'll need to go somewhere much
            cheaper.   Not moving immediately, but maybe
            [i]n the next two years or so. . . . I'd like
            it very much if I could leave my home, crappy
            car [and] personal effects to you except for
            a few I have promised out. And, of course I
            wish - like if sudenly [sic] I died or
            something without the will that you folks
            could have my house even. But, as I said, I
            need to get $60,000 cash for it, in order to
            pay for my new place.

Finally, Heffley concluded with a "[c]heers for now" and a "TTYL"

(talk to you later).

     After thoroughly considering the testimony and documentary

evidence    presented,5   Judge    McDonnell   issued   a   detailed   oral

decision.      Judge   McDonnell    acknowledged   that,    clearly,    the



5
   In his brief and appendix, David relies upon a document titled
"My Grave" that was purportedly prepared and delivered to the
Clarks by Heffley with the November 21 writing.       Because the
document was neither admitted at trial nor the subject of
testimony, we decline to consider it on appeal. See R. 2:5-4(a);
Townsend v. Pierre, 
221 N.J. 36, 45 n.2 (2015).

                                     4                             A-1025-16T3
document was written by Heffley.    However, relying upon In re

Probate of Will and Codicil of Macool, 
416 N.J. Super. 298, 307

(App. Div. 2010), she concluded that the writing lacked the

necessary testamentary intent to be considered Heffley's last will

and testament:

          Not once does [Heffley] say anything like,
          "You know, I've thought about it.      I've
          thought about what I own and what I owe and
          who I'm close to. . . . This is what I want
          to do. . . [.]"

          And she doesn't put it like that.      It's a
          letter. I do believe that she wanted at some
          point to make a will for you, but I don't know
          that she was at that stage yet. I'm just not
          picking up the [testamentary] intent in
          writing this letter.

                 . . . .

          I am not clearly convinced . . . that when
          [Heffley]   offered   this   letter  she   was
          intending for it to be a will. I think she
          was just writing you a letter indicating what
          she would like to do.      But the difference
          between a letter where she's telling you what
          she'd like to do and a holographic will would
          be that her intent was the document that she
          was giving to you would be treated as a formal
          will. . . .

David raises the following points on appeal:



          POINT I.
          THE DOCUMENT DOES COMPLY WITH ALL REQUIREMENTS
          REQUIRED TO BE PROBATED AS A VALID WILL. THE
          TRIAL COURT ABUSED ITS DISCRETION IN SUPPORT
          OF ITS DECISION TO DENY THE DOCUMENT TO

                                5                          A-1025-16T3
          PROBATE.   PART OF THE EVIDENCE OFFERED AT
          TRIAL WAS NOT CONSIDERED, AND WOULD HAVE
          ASSISTED THE COURT IN ESTABLISHING THE
          VALIDIDITY [sic] OF THE DISPUTED DOCUMENT.

          POINT II.
          THE TRIAL COURTS [sic] FINDINGS ARE CLEARLY
          ERRONEOUS. THE COURT FAILED TO USE THE FOUR
          CORNERS OF THE DOCUMENT TO DETERMINE THE
          DECEDENTS [sic] ACUAL [sic] WISHES.        THE
          RECORD SHOWS THAT THE COURT OVERLOOKED CLEAR
          AND SPECIFIC PROVISIONS MADE BY THE DECEDENT
          CONCERNING HER WISHES IN CASE OF SUDDEN DEATH.

          POINT III.
          THE TRIAL COURT ERRED WHILE EXAMINING THE
          WILL. THE RECORD SHOWS THE JUDGE REWROTE THE
          ENTIRE DOCUMENT, AND IN DOING SO CHANGED
          PERTINENT PARTS.    THE ALTERED DOCUMENT WAS
          THEN READ IN OPEN COURT TO SUPPORT THE RULING.

We find David's arguments to be without sufficient merit to warrant

further discussion in a written opinion, R. 2:11-3(e)(1)(E), and

add only the following comments.

     New Jersey courts recognize three types of wills.     The first

is a formal will that must be in writing, signed by the testator,

and signed by at least two individuals who witnessed the testator's

signature or acknowledgement. N.J.S.A. 3B:3-2(a)(1)-(3). Second,

a court may deem a holographic writing a will.   Such writings are

deemed "writings intended as a will" and require "the signature

and material portions of the document [to be] in the testator’s

handwriting."   
N.J.S.A. 3B:3-2(b).   Finally, a will that was not

executed in compliance with the formalities of 
N.J.S.A. 3B:3-2 may


                                6                            A-1025-16T3
be recognized as a valid will "if the proponent of the document

or writing establishes by clear and convincing evidence that the

decedent intended the document or writing to constitute . . . the

decedent’s will. . . ."    
N.J.S.A. 3B:3-3.

     Whether the proffered writing is a holographic will, formal

will, or writing intended as a will, and as the trial judge

correctly noted, the document must reflect an intention to create

a will.   "[T]estamentary intent has always been a prerequisite to

admission of an instrument to probate."         In re Will of Smith, 
108 N.J. 257, 262 (1987).    Testamentary intent exists where a decedent

intends for a document to be a will.        Simonelli v. Chiarolanza,


355 N.J. Super. 380, 385 (App. Div. 2002).         As stated by Justice

Pollock in Smith, "nothing suggests that the Legislature intended

to eliminate testamentary intent either for a holographic or for

a more formally executed will.         To the contrary, the Wills Act

contemplates that testamentary intent is a requirement of both

forms of wills."   Smith, 
108 N.J. at 262.       Further, the proponent

of "a holographic will bears the burden of producing evidence of

testamentary intent. . . ."    Simonelli, 
355 N.J. Super. at 385.

     Judge   McDonnell     concluded     that     despite   the    proofs

establishing Heffley as the competent author of the writing, David

failed to establish by clear and convincing evidence that the

writing reflected Heffley's intention to create a will.        The trial

                                  7                               A-1025-16T3
judge   reached   this   conclusion   after   studiously   reviewing   and

considering the writing itself and the trial testimony.          Because

Judge McDonnell's findings are "supported by adequate, substantial

and credible evidence[,]" they warrant our deference.         Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974).

     Affirmed.




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