TRUSTS AND ESTATES

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

, New Jersey Law Journal

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Citing to the legislative history of N.J.S.A.§ 3B:3-3 and Macool, at 311, the Appellate Division continued:

Thus, N.J.S.A. 3B:3-3, in addressing a form of testamentary document not executed in compliance with N.J.S.A. 3B:3-2, represents a relaxation of the rules regarding formal execution of Wills so as to effectuate the intent of the testator. This legislative leeway happens to be consonant with "a court's duty in probate matters ... 'to ascertain and give effect to the probable intention of the testator.'" As such, Section 3 dispenses with the requirement that the proposed document be executed or otherwise signed in some fashion by the testator.

Ehrlich, 427 N.J. Super. at 72 (citations omitted).

The court explained that N.J.S.A. § 3B:3-3 "places on the proponent of the defective instrument the burden of proving by clear and convincing evidence that the document was in fact reviewed by the testator, expresses his or her testamentary intent, and was thereafter assented to by the testator."

The Appellate Division then noted that the decedent undeniably prepared and reviewed the challenged document. In disposing of his entire estate and making specific bequests, the purported will contained both a level of formality and expressed sufficient testamentary intent. As the motion judge noted, in its form, the document "[was] clearly a professionally prepared will and complete in every respect except for a date and its execution." Moreover, as the only living relative with whom the decedent had any meaningful relationship, Jonathan, who was to receive the bulk of his uncle's estate under the purported will, was the natural object of the decedent's bounty.

The court then turned to whether the decedent "gave his final assent" to the document:

Clearly, decedent's handwritten notation on its cover page evidencing that the original was sent to the executor and trustee named in that very document demonstrates an intent that the document serve as its title indicates — the "Last Will and Testament" of Richard Ehrlich. In fact, the very same day he sent the original of his Will to his executor, decedent executed a power of attorney and health care directive, both witnessed by the same individual. As the General Equity judge noted, "[e]ven if the original for some reason was not signed by him, through some oversight or negligence his dated notation that he mailed the original to his executor is clearly his written assent of his intention that the document was his Last Will and Testament."

Ehrlich, 427 N.J. Super. at 74.

The appellate court also noted that, as late as 2008, the decedent "repeatedly orally acknowledged and confirmed the dispositionary contents therein to those closest to him in life."

The court further concluded that the fact that the document was only a copy of the original sent to the decedent's executor was not dispositive, since N.J.S.A. § 3B:3-3 does not require that the document be an original. The court determined that the evidence was compelling as to the testamentary sufficiency of the document, so as to rebut any presumption of revocation or destruction due to the absence of the original.

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