Getting a “Conformed,” but Unsigned, Copy of a Last Will and Testament Admitted to Probate in New Jersey

When our law office prepares a Last Will and Testament and other estate documents for a client, we usually conduct a signing ceremony and then give the client the original and one photocopy of the Will for their records. Other attorneys have similar procedures. On occasion, however, rather than provide clients with a photocopy of the fully executed Will, an attorney will instead provided clients with a “conformed” copy, which may contain signatures of the testator and witnesses signed by a member of the attorney’s staff followed by the “/s” indicator, or containing no names but showing the symbol “/s/” on signature lines. The symbols “/s” and “/s/” on estate documents indicate that the original Will contains the original signatures of the testator and witnesses. A “conformed” copy of a Will is considered to be unsigned, however, and may not be admitted to probate if the original Will is lost. We recently had a “conformed,” but unsigned, copy of a decedent’s Last Will and Testament admitted to probate via court application. The application was supported with a brief containing the following legal argument. Many certifications from the beneficiaries of the Will and the decedent’s family and friends were also submitted to the Court in support of the application. Readers in possession of a loved one’s unsigned copy of a Will may achieve success in getting the unsigned copy of the Will admitted to probate by filing an application with the court supported by the following law:

The technical requirements for the admission of a traditional will to probate are set forth in N.J.S.A. 3B:3-2, which provides that a valid will must be:

(1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and (3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will … or the testator’s acknowledgment of that signature or acknowledgement of the will.

Although adopting these technical requirements for the admission of a traditional will, New Jersey has also followed the national trend that rejects a blind adherence to strict formalities, in favor of the Uniform Probate Code’s “harmless error” provision, premised upon the desire to “retain the intent-serving benefits of [the formal will requirements] without inflicting intent-defeating outcomes in cases of harmless error.” In re Estate of Ehrlich, 427 N.J. Super. 64, 71-2 (App. Div. 2012), certif. denied, 213 N.J. 46, appeal dismissed, 213 N.J. 496 (2013), (quoting Uniform Probate Code, comment on §2-503).  By enacting the UPC’s harmless error doctrine set forth in N.J.S.A. 3B:3-3, New Jersey chose to disregard the statutory requirements of N.J.S.A. 3B:3-2 when a proffered document clearly reflects the testator’s intent. Pursuant to N.J.S.A. 3B:3-3,

Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.A. 3B:3-2 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.

Our courts have recognized that this harmless error or “substantial compliance” doctrine is a functional rule designed to cure the inequity caused by the “harsh and relentless formalism” of the law of wills. In re Will of Ranney, 124 N.J. 1, 11 (1991). As the Ehrlich court acknowledged, “the statutory formalities are not ends in themselves but rather the means of determining whether their underlying purpose has been met.” 42 N.J. Super. at 71 (quoting Restatement (3d) of Property: Wills and Other Donative Transfers, §3.3 (1999)). Recognizing that rigid insistence on the literal formalities in the execution of wills often frustrates the very purposes for which those formalities were created in the first place, the Ranney Court reflected,

[c]ompliance with statutory formalities is important not because of the inherent value that those formalities possess, but because of the purpose they serve.

124 N.J. at 12.

In furtherance of this trend away from strict formalities in favor of ascertaining the testator’s intent, where an original last will and testament is lost or cannot be found upon the testator’s death, a copy of that will may be admitted to probate, even if the proponent is unable to prove what happened to the original will. In determining whether such relief is appropriate, “the key issue is whether the testator had the intent to revoke the missing will.” In re Estate of Schenecker, 2011 N.J. Super. Unpub. LEXIS 598 (App. Div. Mar. 10, 2011), certif. denied, 207 N.J. 189 (2011).

Our courts’ commitment to the doctrine of probable intent was recognized by our Supreme Court in In re Ericson, 74 N.J. 300 (1977), where the Court explained,

we have shown great willingness to receive extrinsic evidence bearing upon a testator’s probable wishes. If this doctrine is to achieve and maintain credibility, we cannot ignore what such proofs disclose….

Id. at 311.

Although research has revealed no New Jersey cases in which a conformed copy of a will has been proffered for probate, other states have a long history of considering this issue and determining that a conformed copy of a will may be admitted to probate. See, e.g., Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111, 1998 Ga. LEXIS 807 (Ga. Supreme Ct. 1998); McBride v. Jones, 268 Ga. 869, 494 S.E.2d 319, 1998 Ga. LEXIS 19 (Ga. Supreme Ct. 1998); In re Estate of Richard, 556 A.2d 1091, 1989 Me. LEXIS 80 (Me. Supreme Ct. 1989); In re Will of Kalenak, 182 A.D.2d 1124, 583 N.Y.S.2d 332, 1992 N.Y. App. Div. LEXIS 7015 (N.Y. App. Div. 1992); In re Estate of Bowles, 96 Ohio App. 265, 114 N.E.2d 229, 1953 Ohio App. LEXIS 671 (Ohio Ct. App. 1953); In re Estate of Kuszmaul, 491 So. 2d 287, 1986 Fla. App. LEXIS 8745 (Fla. Dist. Ct. App. 1986); In re Estate of Perrault, 2010 Minn. App. Unpub. LEXIS 483 (Minn. Ct. App. May 25, 2010); Estate of Morris, 577 S.W. 2d 748, 1979 Tex. App. LEXIS 3171 (Tex. Civ. App. 1979); Bechtel Estate, 49 Pa. D. & C.2d 643, 1970 Pa. Dist. & Cnty. Dec. LEXIS 462 (Pa. Common Pleas Ct. 1970); In re Juriga’s Will, 140 N.Y.S.2d 656, 1955 N.Y. Misc. LEXIS 3189 (N.Y. Surr. Ct. 1955); In re Will of Eisele, 219 N.Y.S.2d 849, 31 Misc. 2d 173, 1961 N.Y. Misc. LEXIS 2350 (N.Y. Surr. Ct. 1961); In re Estate of Utegg, 396 N.Y.S. 2d 992, 91 Misc. 2d 21, 1997 N.Y. Misc. LEXIS 2226 (N.Y. Surr. Ct. 1977); Estate of Chitty, 2003 N.Y. Misc. LEXIS 2004 (Mar. 4, 2003); In re Estate of Heigle, 2007 Del. Ch. LEXIS 236 (Del. Ct. Ch. 2007); In re Estate of Brown, Case No. CL-2013-0007298 (Dec. 20, 2013).

Despite a dearth of New Jersey case law in which a conformed copy of a will has been proffered, the breadth of our courts’ unyielding commitment to honoring testamentary intent over rigid formalities has been acknowledged by our Appellate Division in recent years. In In re Macool, 416 N.J. Super. 298, 303  (App. Div. 2010),  which was the first published Appellate Division decision construing N.J.S.A. 3B:3-3, the court signaled a willingness to admit an unsigned will to probate when it “reject[ed a statutory reading] that construes N.J.S.A. 3B:3-3 as requiring that the writing offered as a will under the statute bear in some form the signature of the testator as a prerequisite to its admission to probate” (although the unique facts presented there demonstrated that the will in issue was merely a “work in progress”).  As the Macool court astutely reasoned (and the Ehrlich majority later echoed), N.J.S.A. 3B:3-2 sets forth the formal requirements for two types of wills: the traditional and the “holographic” will, each of which must be signed by the testator; it follows that relaxed requirements of N.J.S.A. 3B:3-3 as applied to the holographic will would serve no purpose if it did not dispense with the signature requirement. Macool, 426 N.J. Super. at 312; Ehrlich, 427 N.J. Super. at 72.

Macool’s pronouncement was given effect two years later in In re Ehrlich, supra, 427 N.J. Super. 64 (App. Div. 2012), where the Appellate Division held that an unsigned copy of a will should indeed be admitted to probate where the testator’s intent is clear. In Ehrlich, the decedent’s nephew located a copy of the proffered will in the cluttered and disorganized home of his late uncle, who was an attorney, months after his death. The will was typed on legal paper and bore the decedent’s law firm’s address on the margins. Notably, the will did not contain the signature of the decedent, or of any witness. It was undated. It contained the decedent’s hand-written notation, “Original mailed to [the named executor], 5/20/2000”. The named executor had predeceased Mr. Ehrlich. Pursuant to the proffered will, although 25% of the estate was to pass to his former friend, the bulk of Mr. Ehrlich’s estate passed to his nephew, with specific bequests to his other nephew and niece. Id. at 68. Years after the proffered will was drafted, the decedent had told third parties that he had a will, although he expressed a desire to eliminate a bequest to his former friend. Id.

In accordance with the UPC Commissioners’ discussions and the Restatement comments, the Ehrlich court noted that, although the absence of a signature is excusable, it is the most difficult deficiency to justify:

as a general proposition, the greater the departure from [N.J.S.A. 3B:3-2]’s formal requirement, the more difficult it will be to satisfy [N.J.S.A. 3B:3-3]’s mandate that the instrument reflect the testator’s final testamentary intent.

427 N.J. Super. at 73. This burden, however, is met where the proponent of the will proves clearly and convincingly that “the document was in fact reviewed by the testator, expresses his or her testamentary intent, and was thereafter assented to by the testator.”  Id. at 74.

The Ehrlich court found that this burden had been met.  It found that the will “contains a level of formality and expresses sufficient testamentary intent [and is] … complete in every respect except for a date and its execution.” It reflected a distribution to the natural object of the testator’s bounty. The hand-written notation demonstrated the testator’s final assent. Finally, the court found that, “lest there be any doubt, in the years following the drafting of this document, … decedent repeatedly orally acknowledged and confirmed the dispositionary contents therein to those closest to him in life.”  Id. at 74-5.

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