In re the Estate Ehrlich
47 A.3d 12, 2012 WL 2470122, 427 N.J. Super. 64 (2012)
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Rule of Law:
Under New Jersey's harmless error statute, N.J.S.A. 3B:3-3, a writing that was not signed by the testator or any witnesses may be admitted to probate if the proponent proves by clear and convincing evidence that the decedent reviewed the document and gave final assent, intending it to constitute their will.
Facts:
- Richard Ehrlich, a trust and estates attorney, was estranged from his niece Pamela Venuto and nephew Todd Ehrlich for over 20 years but maintained a close relationship with his other nephew, Jonathan Ehrlich.
- Richard Ehrlich repeatedly told friends that Jonathan Ehrlich was the person to contact upon his death and that Jonathan would be the beneficiary of his estate.
- On May 20, 2000, just before undergoing life-threatening surgery, Richard Ehrlich prepared a 14-page document titled 'Last Will and Testament' that left the bulk of his estate to Jonathan Ehrlich.
- On the same day, Richard Ehrlich formally executed a Power of Attorney and a Living Will.
- The will document was never signed or witnessed, but Richard wrote a note on the cover page of a copy stating: 'Original mailed to H.W. Van Sciver, 5/20/2000'. Van Sciver was the executor named in the will but predeceased Richard.
- Years later, Richard acknowledged the will's existence to friends and expressed a desire to remove a bequest to a friend, Kathryn Harris, though he never formally amended the document.
- After Richard Ehrlich died on September 21, 2009, Jonathan Ehrlich found the unsigned copy of the will in Richard's cluttered home; no other will was ever located.
Procedural Posture:
- Jonathan Ehrlich filed a verified complaint in the General Equity Part (trial court) to have a copy of a document admitted to probate as the will of Richard Ehrlich.
- Todd Ehrlich and Pamela Venuto filed an answer objecting to the probate of the will.
- The court appointed a temporary administrator for the estate.
- Following discovery, both parties filed cross-motions for summary judgment.
- The General Equity judge granted Jonathan Ehrlich's motion, ruling in his favor and admitting the will to probate.
- The judge denied Todd and Pamela's subsequent motion for reconsideration.
- The judge also denied Jonathan's motion for sanctions under the Frivolous Litigation statute.
- Todd Ehrlich and Pamela Venuto, as appellants, appealed the order admitting the will to the Superior Court of New Jersey, Appellate Division. Jonathan Ehrlich, as respondent, cross-appealed the denial of sanctions.
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Issue:
Does a document that was never signed by the testator or any witnesses, but which the proponent proves by clear and convincing evidence reflects the decedent's final testamentary intent, satisfy the requirements for probate under New Jersey's harmless error statute, N.J.S.A. 3B:3-3?
Opinions:
Majority - Parrillo, P.J.A.D.
Yes, a document that was not signed by the testator can satisfy the requirements for probate under N.J.S.A. 3B:3-3. The statute is a remedial 'harmless error' provision that should be liberally construed to effectuate the testator's intent, dispensing with the formal execution requirements of N.J.S.A. 3B:3-2. Applying the two-part test from In re Macool, the proponent must show by clear and convincing evidence that (1) the decedent reviewed the document and (2) gave his final assent to it. Here, since the decedent, an attorney, prepared the detailed will himself, he undoubtedly reviewed it. The decedent's handwritten note stating he mailed the original to his named executor, combined with his execution of other estate documents on the same day and his subsequent oral affirmations of the will's existence, provided clear and convincing evidence of his final assent.
Dissenting - Skillman, J.A.D.
No, an unexecuted document cannot satisfy the requirements for probate under N.J.S.A. 3B:3-3. The plain language of the statute, which excuses documents 'not executed in compliance' with the rules, implies that it applies only to defectively executed wills, not completely unexecuted ones. The legislative history, based on the Uniform Probate Code, indicates the statute codifies a 'harmless error' or 'substantial compliance' doctrine, which is extremely reluctant to excuse the complete absence of a signature. A signature is a critical formality, and its absence creates more than a harmless error. Since the decedent was an experienced estates attorney, he knew a signature was required, and therefore could not have intended the unsigned draft to constitute his final will.
Analysis:
This decision significantly expands the scope of New Jersey's harmless error doctrine in probate law, establishing that the complete absence of both the testator's and witnesses' signatures is not an insurmountable bar to admitting a will. It moves the analysis from a 'substantial compliance' framework toward a pure 'testamentary intent' framework, where extrinsic evidence can overcome even the most fundamental formal defects. This lowers the evidentiary threshold for probating defective instruments but also risks increasing litigation over documents that may have only been preliminary drafts. The ruling emphasizes that the ultimate goal of probate is to effectuate the testator's intent, even at the cost of traditional formalities.
