Another Example Where Technical Formalities Are Not Necessary to Effectuate a Testator’s Intent
Bartek v. LoSapio, No. A-3022-21, 2025 WL 37451 (N.J. Super. App. Div. Jan. 7, 2025)
This case deals with a codicil’s validity that does not reference the decedent’s most recent Last Will and Testament. The Appellate Division was not concerned with the error, even if the error constituted a deficiency in the formality of a writing intended as a will, because the court “dispensed with technical formalities to effectuate the testator’s intent.” Id. at *8.
Ann Christine Bartek (“Ann”) suffered from several medical conditions and feared her estate would be wiped out with the cost of her long-term care. Ann sought advice for estate planning and asset preservation from an attorney (“Attorney 1”). When Ann met with Attorney 1, her brother, the John LoSapio Sr. (“Decedent”), accompanied her. Attorney 1 advised Ann to transfer title of two properties, Dover and Madison, to a trusted individual. Ann chose the Decedent because Ann had no children to effectuate the advice of Attorney 1.
The agreement between Ann and the Decedent was that she would convey title to the Dover and Madison properties subject to a life estate retained by her along with the following conditions: (1) Decedent would reconvey the properties back to Ann at any time she desired; (2) Decedent would own the properties if Anne predeceased him; and (3) the residuary beneficiaries in Ann’s Will would own the properties if Decedent predeceases Ann.
Ann and the Decedent informed Attorney 1 of the agreement and Attorney 1 prepared a codicil, dated December 16, 2005 (the “First Codicil”), to the Decedent’s Last Will and Testament dated February 6, 2003 (the “First Will”). The First Codicil referenced Decedent’s First Will and supplemented the Decedent’s will by adding the following:
My sister, [plaintiff], conveyed to me her propert[ies] in Madison and Dover, New Jersey, subject to a life estate retained by her. If I shall predecease her, I disclaim that ownership and direct that ownership of both properties shall pass under the residuary provisions of the Last Will and Testament of [plaintiff], subject to her continuing life estate.
Id. at *2.
In 2007, Anne wished to sell the Dover property, and the Decedent, in accordance with the conditions to their agreement, agreed and executed a deed conveying the Dover property back to Ann. Shortly thereafter the Decedent contacted an attorney (“Attorney 2”) to revise his First Will. The Decedent did not mention to Attorney 2 any deed concerning the Madison property or a codicil. The Decedent executed a revised will on January 9, 2009 (the “Second Will”).
In 2016, the Decedent’s son, John LoSapio, Jr. (“Junior”), contacted an attorney (“Attorney 3”) to provide Medicaid planning services for the Decedent because of the fear the Decedent’s healthcare would deplete his estate. At the same time, Ann’s condition worsened and Ann asked Attorney 1 about the Decedent conveying the Madison property back to her. As an alternative, Attorney 1 advised preparing another codicil to the Decedent’s Will. A codicil dated January 16, 2016 (the “Second Codicil”) stated this document was the only codicil to Decedent’s First Will and revoking the Decedent’s First Codicil. The Second Codicil stated:
My sister, [plaintiff], conveyed her property in Madison, New Jersey to me during her lifetime, subject to a life estate retained by her. If I shall predecease her or upon my demise, I distribute ownership of that property, per capita and not per stirpes, to the living residuary beneficiaries in the Last Will and Testament of [plaintiff], namely, JOSEPH LO SAPIO, GABRIEL LO SAPIO, JR., NANCY SIBONA, VINCENT SIBONA, JR. and PATRICIA COREY.
Id. at *3.
The same day, a copy of the Second Codicil was faxed to Attorney 2 and the Decedent, but an original was never found. After much disagreement between Ann and Junior over conveying the Madison property back to Ann, the Decedent passed away. Junior probated the Decedent’s Second Will and attested there were no codicils to that will. Junior transferred the Madison property to himself and 108 North Street, LLC.
Ann sued for recognition of the Second Codicil, and the trial court held the Second Codicil was valid and should be admitted to probate. The trial court found the testimony of Ann, Attorney 1, Attorney 2, and Attorney 3 to be credible and consistent with the documentary evidence, while Junior’s credibility was contradictory and inconsistent with documentary evidence. Junior appealed this determination.
Junior argued the trial court’s findings were erroneous because the original Second Codicil was never located and the copy of the Second Codicil did not refer to the Decedent’s Second Will from 2009, but rather referred to his First Will from 2003.
The Appellate Division found the Second Codicil satisfied N.J.S.A. § 3B:3-2(a). The Second Codicil was signed by the Decedent and by two witnesses. Additionally, the court was satisfied with the testimony of Attorney 1 stating the drafting error simply occurred because the Decedent never told Attorney 1 the Second Will existed.
The Appellate Division was not concerned with the errors because the court had dispensed with technical formalities to effectuate the testator’s intent. The Appellate Division stated that the Decedent reviewed the Second Codicil well after the execution of his Second Will and that the testimony from the attorneys involved reflected the Decedent’s intention for the Madison property to be re-conveyed to Ann. Moreover, Attorney 3 had testified the Decedent called him over 10 times in 2016 stating he wanted the Madison property transferred back to Ann.
Furthermore, the Appellate Division did not think there was a presumption the Second Codicil was revoked. The court stated there was insufficient evidence presented to indicate the Decedent revoked or destroyed the Second Codicil.