May an Unexecuted Will be Admitted to Probate?

July 23, 2012
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By:  Joel N. Kreizman, Partner, Co-Chair Litigation Group

Perhaps So – If the New Jersey Supreme Court Agrees

In a recent decision by New Jersey’s Appellate Division, two members of a three judge Panel answered the above question, in the circumstances presented, in the affirmative.  The third panel member, Judge Stephen Skillman, dissented, arguing that an unexecuted will may never be admitted to probate.  However, under New Jersey Court Rules, decisions of split Appellate Division panels are subject to automatic appeal to the State Supreme Court.  Accordingly, the ultimate answer to the question should be provided during the High Court’s next term. The case is In the Matter Of The Estate Of Richard Ehrlich.  The decedent was a lawyer who had sent the original of his will to his executor.  The executor, however, predeceased Ehrlich and the executed will was never found.  The matter came before the court, not on a lost will claim, but on a contention that the unsigned copy should be accepted for probate because there was clear and convincing evidence that the copy expressed the decedent’s intentions.  The beneficiary who proffered the will argued, and the majority of the appellate panel held, that the statute setting forth the formalities of a will, N.J.S. 3B:3-2, et seq., should be liberally construed to carry out the testator’s intent.  They cited, in particular, to N.J.S. 3B:3-3 which states:

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 …

The dispute between the majority and Judge Skillman was not based on the strength of the evidence supporting the testator’s intent.  Rather, the dissent argued that N.J.S. 3B:3-3 “only allows the admission to probate of a defectively executed will, not an unexecuted will.” In support of that position, Judge Skillman reviewed the statute’s legislative history, which includes references to interpretations of similar statutes in other jurisdictions, as well as to the Restatement (Third) of Property.  The comments to the latter, state, in part:

Only a harmless error in executing a document can be excused under this Restatement.

Among the defects in execution that can be excused, the lack of a signature is the hardest to excuse.  An unsigned will raises a serious but not insuperable doubt about whether the testator adopted the documents as his or her will.

Judge Skillman further pointed out that the decedent was an attorney who specialized in estates and trusts, someone who would certainly know that an unexecuted will is unlikely to be probated.  So may an unexecuted will be admitted to probate?  With valid arguments on both sides of the issue, prediction is nearly impossible.  Time – and the New Jersey Supreme Court — will tell.