No Signature Required: N.J. Leads the Way With Writings Intended as Wills

, New Jersey Law Journal


The document proffered by Jonathan was described by the Appellate Division as a copy of a detailed 14-page document entitled "Last Will and Testament," typed on legal paper with Ehrlich's name and law office address in the margin of each page.Further, although the document did not contain the decedent's signature or any witnesses' signatures:

It [did], however, include, in decedent's own handwriting, a notation at the right-hand corner of the cover page: "Original mailed to H.W. Van Sciver, 5/20/2000[.]" The document names Harry W. Van Sciver as Executor of the purported Will and Jonathan as contingent Executor. Van Sciver was also named Trustee, along with Jonathan and Michelle Tarter as contingent Trustees. Van Sciver predeceased the decedent and the original of the document was never returned.

Ehrlich, 427 N.J. Super. at 68.

The purported will provided $50,000 to Pamela; $75,000 to Todd; 25 percent of the residue to a trust for the benefit of a friend, Kathryn Harris; and 75 percent of the residue to Jonathan.

It was "undisputed that the document was prepared by the decedent and just before he was to undergo life-threatening surgery." On the same date as the proffered will — May 20, 2000 — the decedent also executed a power of attorney and living will, which were both witnessed by the same individual, the Burlington County surrogate, who later predeceased the decedent. As with the purported will, these other documents were typed on traditional legal paper with Richard Ehrlich's name and law office address printed in the margin of each page.

The evidence established that, years after drafting these documents, the decedent acknowledged to others that he had a will and wished to delete the bequest to his former friend, Kathryn Harris. Nevertheless, no later will was ever found.

After discovery, the parties cross-moved for summary judgment. The trial court granted Jonathan's motion and admitted the document to probate. The court reasoned:

First, since Mr. [Richard] Ehrlich prepared the document, there can be no doubt that he viewed it. Secondly, while he did not formally execute the copy, his hand written notations at the top of the first page, effectively demonstrating that the original was mailed to his executor on the same day that he executed his power of attorney and his health directive is clear and convincing evidence of his "final assent" that he intended the original document to constitute his last will and testament as required both by N.J.S.A. 3B:3-3 and [In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010)].

Ehrlich, 427 N.J. Super. at 69.

On appeal, the Appellate Division articulated the issue as "whether the unexecuted copy of a purportedly executed original document sufficiently represent[ed] decedent's final testamentary intent to be admitted into probate."

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