No Signature Required: N.J. Leads the Way With Writings Intended as Wills
Faced with everything from DVDs to Post-it notes, New Jersey courts are admitting to probate nontraditional "documents" as writings intended as wills. A recent New Jersey Appellate Division decision, In re Estate of Ehrlich, is the latest example of the movement away from strict compliance with will formalities.
Erosion of Formalities
The national trend away from strict formalities has developed in large part since the adoption of § 2-503 of the Uniform Probate Code (UPC) in 1990. In adopting the UPC, New Jersey codified the formal requirements for a traditional will. These basic requirements are delineated in N.J.S.A. §§ 3B:3-1 and 3B:3-2.
With the adoption of the UPC, New Jersey also adopted the harmless error doctrine (UPC § 2-503), allowing documents that lack the traditional requirements for a valid will to be probated. N.J.S.A. § 3B:3-3 states:
[A] 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; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of [a] formerly revoked will or formerly revoked portion of the will.
The doctrine of harmless error ignores the traditional statutory elements and focuses directly on whether the testator intended the document to be effective as his last will and testament.
The majority of states has rejected the UPC § 2-503 harmless error doctrine in favor of strict compliance with the statutory requirements to create a valid will. Only Hawaii, Michigan, Montana, South Dakota and Utah have joined New Jersey in adopting the UPC's harmless error doctrine in full. California, Colorado, Ohio and Virginia have adopted a variation of the doctrine.
The Ehrlich Case
The New Jersey Appellate Division upheld the probate of a copy of an unsigned document in In re Estate of Ehrlich, 427 N.J. Super. 64 (App. Div. 2012), appeal dismissed, 2013 WL 1798027 (N.J. 2013) (the Appellate Division decision was appealed to New Jersey Supreme Court as of right based on dissent, but was dismissed by stipulation of the parties on April 26, 2013).
Decedent Richard Ehrlich was a trust and estate attorney who practiced in Burlington County for over 50 years. At his death, his only heirs or next of kin were his deceased brother's three adult children — Todd and Jonathan Ehrlich, and Pamela Venuto.
The material facts were undisputed. The decedent had not seen or had any contact with Todd or Pamela in over 20 years, but he did maintain a relationship with Jonathan. In fact, the decedent told his closest friends that Jonathan was the person to contact if he became ill or died, and that Jonathan was the person to whom the decedent would leave his estate.
Jonathan learned of his uncle's death nearly two months after the passing. He then located a copy of a purported will in a drawer near the rear entrance of the decedent's home. He filed a verified complaint seeking to have the document admitted to probate. His siblings, Todd and Pamela, objected.
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.
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