In re Probate of Will and Codicil of Macool

Louise Macool executed a will on September 13, 1995 through her attorney Kenneth Calloway. The will named her husband as the sole beneficiary and his children, grandchildren, and great-grandchildren as contingent beneficiaries. Macool executed a codicil on May 23, 2007. Louise’s husband passed away on April 26, 2008. On May 21, 2008, Macool visited Calloway’s office to change her will. She brought a handwritten note that, among other things, reflected her wish to add as a beneficiary Mary Rescigno (plaintiff), her niece, and that her home be left in the Macool family. Rescigno’s daughter and grandchildren were named as contingent beneficiaries of her share. After Macool left Calloway’s office, Calloway prepared a draft will based on their conversation. The draft was substantially similar to Macool’s handwritten notes but did not name her grandchildren as residual beneficiaries. Moreover, the draft will stated that the Macool children were to try to keep the home in the Macool family as long as possible. Calloway expected that Macool would return to review the draft. However, Macool passed away soon after leaving his office. Macool’s 1995 will and 2007 codicil were admitted to probate. Rescigno brought this action to invalidate the 1995 will and 2007 codicil, and have the draft will admitted to probate. The trial court found that there was insufficient evidence that Macool intended the draft will to be her final testament and ruled that it could not be admitted to probate.