NJ recognizes writings intended as Wills
3B:3-2c permits the use of extrinsic evidence
to establish that a document constitutes the testator’s will, including
writings intended as wills and portions of the document that are not in the
testator’s handwriting.
Based on § 2-503 of the Uniform Probate Code,
N.J.S.A. § 3B:3-3 recognizes writings intended as wills:
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; (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 his formerly
revoked will or formerly revoked portion of the will. Source:
http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/2013/2_april/te_alert.authcheckdam.pdf
Indeed, this statute has created a wide
opening beyond holographic wills. For example, under this statute, a will
prepared by the testator himself on his computer and signed by him would be
valid. This document would not be a holographic will because the material
provisions are not in his handwriting.
The Appellate Division
in New Jersey in 2012 continued the interesting evolution of the concept of
writings intended as wills in New Jersey. Modeled after UPC 2-503 (“Harmless
Error”), N.J.SA. §3B:3-2c permits the use of extrinsic evidence to
establish that a document that does not comply with testamentary formalities
can still constitute a valid will, including writings intended as wills and
portions of the document that are not in the testator’s handwriting.
In the case of Estate of Richard D. Ehrlich,
427 N.J. Super. 64, 47 A.3d 12 (App. Div. 2012), the Appellate Division upheld
the probate of a copy of an unsigned document as a valid writing intended as a
will. The appeal to the NJ Supreme was Dismissed by stipulation of the parties on
4/26/13.
Facts
Decedent Richard Ehrlich was a trust and estate
attorney for over 50 years. He died on September 21, 2009. His only next of kin
(his heirs) were his deceased brother’s three 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. Jonathan then located a copy of a purported will in a
drawer near the rear entrance of the decedent's home.
Jonathan 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 follows:
[It] is a copy of a detailed fourteen-page document
entitled “Last Will and Testament.” It was typed on traditional legal paper
with Richard Ehrlich’s name and law office address printed in the margin of
each page. The document does not contain the signature of decedent or any
witnesses. It does, 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.
1
Id. at 68.
The purported will provided: $50,000 to Pamela;
$75,000 to Todd; 25% of the residue to a trust for the benefit of a friend,
Kathryn Harris; and 75% 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.” Id.
at 68. On the same date as the proffered will -- May 20, 2000 – the decedent
also executed a Power of Attorney and living will, “both witnessed by the same
individual, who was the Burlington County Surrogate. 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.” Id.
at 69.
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.
Analysis
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)].
Id. at 69.
The Appellate Division articulated the issue as
“whether the unexecuted copy of a purportedly executed original document
sufficiently represents decedent's final testamentary intent to be admitted
into probate under” N.J.S.A. § 3B:3-3. Id. at 69-70.
Citing to the legislative history of that statute,
and In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298,
311 (App. Div. 2010), 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.’” Macool, supra, 416 N.J. Super. at
307 (quoting Fidelity Union Trust v. Robert, 36 N.J. 561, 564
(1962)) (internal citations and quotation marks omitted in original). As such,
Section 3 dispenses with the requirement that the proposed document be executed
or otherwise signed in some fashion by the testator. Macool, supra,
416 N.J. Super. at 311.
The court explained 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.” Id. at 74.
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 both contains a
level of formality and expresses
sufficient testamentary intent. As the motion judge
noted, in its form, the document "is 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 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 decedent's bounty.
Id. at 74.
The court then turned to whether the decedent “gave his final assent” to the
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."
Id. 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.” Id. at
74-75.
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. Id.
at 76.
One of the most intriguing aspects of the Ehrlich
decision is the dissent by the Honorable Stephen Skillman, J.A.D. (retired
and temporarily assigned on recall). He concluded, “I do not believe that
N.J.S.A. § 3B:3-3 can be reasonably construed to authorize the admission to
probate of an unexecuted will.” Id. at 78. In other words, Judge Skillman
found that the statute authorized the admission to probate of a defectively
executed will, and not an unexecuted will. However, Judge Skillman was
also on the three-judge panel that decided the appeal in Macool – and
reached a different conclusion in dicta.
In Ehrlich, Judge Skillman relied on the
legislative history of N.J.S.A. § 3B:3-3 and national standards under
the Uniform Probate Code. He explained, “Although I was on the panel that
decided Macool, upon further reflection I have concluded that that
opinion gives too expansive an interpretation to N.J.S.A. § 3B:3-3;
specifically, I disagree with the dictum that seems to indicate a draft will
that has not been either signed by the decedent or attested to by any witnesses
can be admitted to probate, provided the putative testator gave his or her
‘final assent’ to the proposed will.”
Judge Skillman stated that the proper standards for
the case at bar were those dealing with lost wills. He would have remanded the
matter for proceedings under those standards. Id. at 83-84.
Meanwhile, the majority opinion addressed Judge
Skillman’s dissent as follows:
Our dissenting colleague, who participated in Macool,
retreats from its holding and now discerns a specific requirement in Section 3
that the document be signed and acknowledged before a court may even move to
the next step and decide whether there is clear and convincing evidence that
the decedent intended the document to be his Will, and therefore excuse any
deficiencies therein. We find no basis for such a constrictive construction in
the plain language of the provision, which in clear contrast to Section 2,
expressly contemplates an unexecuted Will within its scope. Otherwise what is
the point of the exception?
Id. at 72.
The holding in Ehrlich demonstrates that the
erosion of the requirements of testamentary formalities continues, and even unsigned
wills may be probated. The concept of writings intended as wills can be
expected to continue to evolve – and provide fertile ground for estate litigation
– in those cases involving non-traditional testamentary “documents.”
Back
in 2004 In Will of Ferree 369 N.J. Super. 1 (2004) the novel
question presented by the appeal is whether the filling in the blanks on a
pre-printed will form, signed but not witnessed as required by statute,
satisfies the requirements for recognition as a holographic will. The Chancery
Division judge held that it does not. He dismissed the complaint seeking
admission of the purported will to probate and declared the decedent to have
died intestate.
The
NJ Appellate Division agree and affirm substantially for the reasons expressed
by Judge Clarkson S. Fisher, Jr., in his comprehensive reported opinion in 2003 (Ch. Div. 2003). The
Appellate Division did not write a full opinion.
The NJ Legislature effectively reversed
the decision in Will of Ferree to permit certain writings and
pre-printed forms when the New Probate Law was adopted.
As set forth in the NJ SENATE JUDICIARY
COMMITTEE STATEMENT TO
SENATE, No. 708:
“…The bill also clarifies situations
where writings that are intended as wills would be allowed, but requires that
the burden of proof on the proponent would be by clear and convincing
evidence.”
N.J.S.3B:3-3 was amended to read as follows:
3B:3-3.
[Holographic will] Writings intended as wills.
[A
will which does not comply with N.J.S.3B:3-2 is valid as a holographic will,
whether or not witnessed, if the signature and material provisions are in the
handwriting of the testator- old statute]
Although
a document or writing added upon a document was not executed in compliance with
N.J.S.3B:3-2, the document or writing is treated as if it had been executed in
compliance with N.J.S.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 his formerly revoked will or
formerly revoked portion of the will.
New statute
The intent of the Legislature was to
overrule the decision in Will of Ferree.
Chapter 132 of 2004 was Senate Bill number S708 of the 211th
Legislature previously Bill A2905 of the previous Legislature. In the Statement to Bill number S708 of the
26th January 2004 the Senate Judiciary Committee reported favorably
on the Bill and states that:
‘This Bill
is modeled on the 1990 version of the Uniform Probate Code’.
Section 2-503 of the Uniform Probate
Code is exactly the same as article 3B: 3-3 of Chapter 132 of 2004 – the new
New Jersey Probate Law. Section 2-502
(c) of the Uniform Probate Code is exactly the same as article 3B: 3-2 (c) of
Chapter 132 of 2004. Therefore, it is
admissible that the case law and interpretations given to those sections of the
Uniform Probate Code in other US jurisdictions where it was adopted can be
referred to it by the New Jersey Court.
‘The official comment of Section 2-503
of the [Uniform Probate] Code provides that the basic purpose of the rule is to
place the burden on the proponent of a document to prove by clear and
convincing evidence that the decedent intended the document to be his will.’¹
¹ Sean P. Milligan, ‘The Effect of a
Harmless Error in Executing a Will: Why Texas should adopt section 2-503 of the
Uniform Probate Code’ – Saint Mary’s Law Journal 2005; Vol 36; Number 3; pp 801
‘Code Policy and Devices
The [Uniform Probate] Code’s will
provisions have three primary objectives: (1) to make uniform among the
jurisdictions the execution requirements for wills; (2) to reduce execution
requirements to their indispensable minimum; and (3) to validate as often as
possible instruments purporting to be wills.’2
‘Section 2-503 of the Uniform Probate
Code provides a remedy in those cases where a rejection of the will causes
significant intent denying results to occur notwithstanding the available proof
of that intent. Its purpose is to convert ineffective attempts at finalized
intent into effective, finalized plans if the standard of evidence can be
satisfied.
The provision is unspecific as to which
formalities may be dispensed. With the
exception that there must be a document or a writing added upon a document, all
other formalities are subject to the dispensing remedy. Considering the uniqueness of wills validity
situations, the dispensing power will be exercised on a case-by-case basis’.3
McGovern and Kurtz in ‘Wills, Trusts
and Estates including Taxation and Future Interests’ (2004) page 3 state that,
‘The Uniform Probate Code allows wills which fail to meet the formal
requirements if there is clear and convincing evidence that the decedent
intended the document to be a will’.
Montana has had a section 2-503
dispensing power since 1993. In Re:
Estate of Kuralt , 15 P. 3d, 931, 932-33 (Mont. 2000) the facts are quite
similar to the present complaint.
‘The
decedent in Kuralt had been involved in a long-term extramarital
relationship. Having previously deeded a
cabin and twenty acres to this intimate friend for no consideration, Kuralt
wrote a letter to her from his hospital bed stating: ‘I’ll have the lawyer
visit the hospital to be sure you inherit the rest of the place in MT. if it
comes to that’. (The opinion
notes that the testator was reluctant to contact a lawyer because he wished to
keep the relationship secret). Kuralt
wrote the letter while extremely ill, dying a mere two weeks later. Kuralt died testate, having executed a valid
will several years earlier. The
beneficiaries of Kuralt’s will were his wife and children, with no mention of
his mistress. Nonetheless, Kuralt’s
companion sought to probate Kuralt’s letter as a valid codicil to his original
will.
The
court focused on the decedent’s last months in order to find that the letter
provided sufficient evidence of the decedent’s testamentary intent. The court emphasized that Kuralt
drafted the letter ‘in extremis”, as he was in the hospital and died
only two weeks after having sent the letter.
2 Uniform Probate Code in a Nutshell, Lawrence H.
Averill (2000) p. 146
3 Uniform Probate Code in a Nutshell, Lawrence H.
Averill (2000) p. 151-152
The court
also placed considerable weight on Kuralt’s conveyance of the twenty acres and
cabin for no real consideration and on the extrinsic evidence that he intended
to convey the remainder of his Montana property to the mistress in much the
same way. Additionally, Kuralt
underlined the word ‘inherit’ in his letter, further suggesting his intent to
make a posthumous disposition of his property.
All of this evidence provided factual support sufficient for a
determination that Kuralt intended that his mistress have the remainder of the
Montana property upon his death, despite Kuralt’s failure to execute a formal
codicil. The court thus saw fit to
uphold Kuralt’s testamentary wishes, granting the property to his mistress as
Kuralt himself intended.’4
Therefore, the Montana court, basing
itself on a provision in its Statute equivalent to section 2-503 of the Uniform
Probate Code, probated a letter written two weeks before death as a valid
codicil. The similarity with the facts
of the present complaint is striking.
In 1991, the New Jersey Supreme Court
was ready to apply the Substantial Compliance doctrine as well as dispensing
power to avert the injustices that would have resulted in adhering to strict
compliance. ‘In re Will of Ranney,
the court renounced the doctrine of strict compliance in favor of the
application of an equitable remedy exhibiting characteristics of both the
substantial compliance doctrine and the U.P.C. section 2-503 dispensing
power. The court in Ranney was
faced with an alleged will, a document that included the signature of two
witnesses on an attached self-proving affidavit but not on the actual
will. The appellate division, stretching
the bounds of the statute, presumably to reach the more desirable outcome for
Mr. Ranney’s intended beneficiaries, concluded that the self-proving affidavit
constituted a part of the will and, moreover, that the witnesses’ signatures on
the affidavit provided valid attestation of the actual will. Thus, the appellate division held that the
will literally complied with the statutory formalities.
The Supreme Court disagreed that the
witnesses’ signatures on the affidavit constituted literal compliance with the
statute. However, the court decided that
the signatures of the affidavit in Ranney did substantially
comply with the statutory formalities.
In
reaching this conclusion, the court in Ranney inquired into the
legislative history of this statute, discovering that the wills statute was in
fact adopted to liberate the requirements for will execution from the exacting
standards imposed by wills acts prior to the adoption of the U.P.C. and to
prevent minor defects from automatically invalidating otherwise validly
executed wills. The court asserted its
belief that ‘the Legislature did not intend that a will should be denied
probate because the witnesses signed in the wrong place’.
This opinion would not be nearly as
interesting if the court had simply stopped here, having chosen to apply the
substantial compliance doctrine and sending the beneficiaries home with their shares of the estate as Mr. Ranney desired. Instead,
the court slipped in ….
4
Leigh A. Shipp’s ‘Equitable Remedies for Non conforming Wills: New Choices for
Probate Courts in the United States’ – Tulane Law Review 2005; vol 79; Number
3; pp. 737-738
… four
words that do not usually accompany a substantial compliance analysis; the
court stated, ‘[w]hen formal defects occur, proponents should prove by clear
and convincing evidence that the will substantially complies with statutory
requirements’. The language ‘clear and
convincing evidence’ in the wills context, as we have seen, signals the
dispensing power of
U.P.C. section 2-503,
not the doctrine of
substantial compliance.
The court nevertheless cited U.P.C.
section 2-503 and the Restatement (Second) of Property: Donative Transfers, as
if the language were found therein… …
The
Ranney holding certainly provides a new approach to the available
remedies for nonconforming wills. In no
other case has the evidentiary standard of the U.P.C. dispensing power been
intermingled with the substantial compliance analysis. The Ranney decision suggests that, in
New Jersey, clear and convincing evidence that the testator intended the
document to constitute his will likely will convince the court to overlook
minor defects, such as the misplacement of the witnesses’ signatures.’5
It is important to stress that the
decision in Ranney was handed in 1991, fourteen years before the New
Jersey Legislature decided to place section 2-503 of the Uniform Probate Code
in its Statute Book. The New Jersey
Supreme Court was ready to apply substantial compliance and dispensing power
even though there was as yet no legislation in place.
When
discussing the dispensing power provision Sean P. Milligan6 states that: ‘Litigation levels and
respect for formalities will not be affected to a large extent by the [dispensing
power provision]. Given that fact, it is
important to make sure we ask the right question. The question should not be whether the
testator complied with formalities; rather the question should be whether
the testator intended to create a will.
The question gets to the point more effectively than asking whether the
testator complied with will formalities because it allows the court to look
directly at intent. The proponents must
prove the testator’s intent with clear and convincing evidence7.
Therefore, the [dispensing power provision] imposes a heavy burden on
the proponent of the will to demonstrate to the court that the error should be
ignored highlighting the importance of procedural safeguards for the testator8.
[This provision] would also provide consistency in probate law by
applying a standard of clear and convincing evidence of the testator’s intent
in all cases.’
At
pp. 812 then Milligan observes that: ‘When the testator misunderstands
attestation requirements, it seems only reasonable that the law should not
allow such a blunder to invalidate completely an otherwise valid will, if the
proponents present clear and convincing evidence of testamentary intent’.
In conclusion, it has been stated that:
“The law on wills should be about results; and the end result should be to
probate wills when there is clear and convincing evidence that the testator
intended to create a will. The clear and
convincing evidence standard serves essentially the same function as statutory
execution requirements. By requiring the
proponent of a will to provide clear and convincing evidence of testamentary
intent, the testator is protected against unwanted imposition and fraud from
interested third parties.”9
Kenneth Vercammen, Esq. – Probate, Estate Planning & Elder Law bio
Kenneth A. Vercammen is a trial attorney
in Edison, NJ. He is co-chair of the ABA Probate & Estate Planning Law
Committee of the American Bar Association Solo Small Firm Division. The is the author of the ABA book “Wills and
Estate Administration, available at http://shop.americanbar.org/.”
He is a speaker for the NJ State Bar
Association at the annual Nuts & Bolts of Elder Law & Estate
Administration program.
He was Editor of the ABA Estate Planning
Probate Committee Newsletter. Mr. Vercammen has published over 150 legal
articles in national and New Jersey publications on Wills, litigation, estates,
probate law and trial topics. He is a highly regarded lecturer on litigation
and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar
Association and Middlesex County Bar Association. His articles have been
published in noted publications included New Jersey Law Journal, ABA Law
Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws
website www.njlaws.com which includes many articles on Estate Planning,
Probate and Wills.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT
LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
http://www.njwillsprobatelaw.com
5
Shipp op-cit p. 741
6
Milligan op. cit pp.
810-811
7 John H. Langbein, Curing
Execution Errors and Mistaken Terms in Wills the Restatement of Wills Delivers
New Tools (and New Duties) to Probate Lawyers, 18 PROB & PROP. 28, 29-31
(2004) pp. 34-36 (stating that a clear and convincing evidence standard of
intent, as opposed to a reasonable doubt standard would be an adequate standard
because the clear and convincing evidence standard is prominent in other areas
of gratuitous transfers, such as deeds, trusts and insurance contracts).
8 Emily Sherwin, Clear and
Convincing Evidence of Testamentary Intent: The Search for a Compromise between
Formality and Adjudicative Justice, 34 CONN. L. Rev 453, 460 (2002) p. 453,
460 (arguing that ‘[b]y placing the burden of proof upon the proponent of a
defective instrument, and by requiring the proponent to [show] clear and
convincing evidence … [of the testator’s intent, the {dispensing power
provision}] imposes procedural standards appropriate to the seriousness of the
issue.
9 Bruce H. Mann, “Formalities
and Formalism in the Uniform Probate Code, 142 U. PA. L. Rev. 1033, 1040
(1994)
p.820
