Citing Unpublished Rulings? Attach Them!

In re Estate of Flood, 417 N.J. Super. 378 (App. Div. 2010). The holding of this case was that where a decedent has left no will, the doctrine of probable intent cannot be used to, in effect, create a will. But the matter of interest to appellate practitioners cropped up in a footnote at the very end of Judge Fisher’s opinion.

There, the court noted that the contestants had relied on two different unpublished orders of the probate court that they asserted supported their respective positions. While observing that decisions of trial judges are not binding on the Appellate Division, the panel “recognize[d], however, that probate judges develop an expertise in the area that might have been illuminating had either party provided us with copies of those judges’ decisions.” But since the parties had not supplied the opinions, the references to those probate part rulings had “no value.”