Appellate Division Affirms Admission Of Unsigned Copy Of Purportedly Executed Will To Probate

In a published opinion, the New Jersey Appellate Division took a further step away from requiring strict compliance with statutory formalities required for wills when it considered whether an unexecuted copy of a typed original will “sufficiently represents decedent’s final testamentary intent to be admitted into probate under N.J.S.A. 3B:3-3.” The court found that it did, and affirmed the chancery court’s admission of the proffered will to probate. Matter of the Estate of Ehrlich, _____ N.J. Super ____ (App. Div., June 29, 2012)

The decedent, Richard Ehrlich, was a trust and estates attorney. Following his death, the proffered will was discovered in a drawer in his home. (Slip op. at 2). The document was a copy of a detailed document entitled “Last Will and Testament,” and was typed on his law firm’s traditional will paper. The document was unsigned, but contained the decedent’s handwritten note that the original had been mailed to his executor (who predeceased the decedent, never having returned the original). (Slip op. at 3).

The court examined N.J.S.A. 3B:3-3, which provides:

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: (1) the decedent’s will….

The court quoted with approval the Restatement (Third) of Property: Wills and Other Donative Transfers §3.3 (1999) comment that “modern authority is moving away from insistence on strict compliance with statutory formalities, recognizing that the statutory formalities are not ends in themselves but rather the means of determining whether their underlying purpose has been met.” (Slip op. at 8). The court also referenced its recent decision in In re Probate of will and Codicil of Macool, which I blogged about here, where it held that a writing need not be signed by a testator in order to be admitted to probate:

for a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.

The Ehrlich court rejected the dissent’s position that the document must be signed before a court will consider whether there is clear and convincing evidence of intent. (Slip op. at 10).

The court concluded that the decedent had prepared and reviewed the document, and that the handwritten notation showed that the original document was sent to the executor and demonstrated the decedent’s intent that the document serve as his Last Will and Testament. Moreover, in the years after, the decedent had acknowledged the existence of the will to third parties, and orally acknowledged the dispositions contained in the will. (Slip op. at 14-15).

Consequently, the court concluded that “we are satisfied there is clear and convincing evidence that the unexecuted document challenged by appellants was reviewed and assented to by decedent and accurately reflects his final testamentary wishes.” (Slip op. at 15).

A copy of the June 29, 2012 opinion can be found here- Matter of the Estate of Ehrlich

UPDATED ON NOVEMBER 20, 2013 – This case was appealed, and certification was granted by the New Jersey Supreme Court. Recently, I discovered that the Supreme Court dismissed the appeal on stipulation of the parties. As a result, the attached Appellate Division decision as summarized above is the law in our state.