Under some circumstances, a Will that is neither dated nor signed may be admitted to probate

   On June 29, 2012, In the Matter of the Estate of Richard D. Ehrlich, Superior Court ofNew Jersey, Appellate Division, Docket No. A-5439-10T2, the Court was faced with the question as to whether an unexecuted copy of a Will sufficiently represents the decedent’s testamentary intent such that the Will could be admitted to probate. 

   By way of background, the decedent was an estate planning attorney who practiced for over fifty (50) years.  He executed a Will nine (9) years before his death, kept an unsigned copy in his office, and sent the original documents to his executor.   The Will left 25% of his estate to a friend, Kathryn, and the balance to his nephew, Jonathan.  The decedent left behind two other relatives, a nephew and a niece, who were not mentioned in the Will. 

   The decedent’s nephew, Jonathan, found a copy of the purported Will in a drawer in the decedent’s house, which was not signed but was on the decedent’s letterhead.  Jonathan submitted the unsigned document for probate.  The other nephew and niece contested.      

   The proffered Will is a copy of a detailed fourteen-page document entitled “Last Will and Testament” printed on the decedent’s paper.  The document was not signed.  On the right-hand corner of the cover page the decedent wrote “Original mailed to H. W. Van Sciver,5/20/2000.”  Harry W. Van Sciver predeceased the decedent.  The original of the document was never returned.

   The purported Will provides specific bequests of $50,000 and $75,000 to the objectors.  Twenty-five percent of the residuary estate passes to a trust for the benefit of a friend.  Seventy-five percent of the residuary estate passes to the proponent.  The document was prepared just before the decedent was to undergo life-threatening surgery.  He also executed a Power of Attorney and Living Will that day.  Years later, decedent acknowledged that he had a Will and wished to delete the bequest to the friend. 

   N.J.S.A. 3B:3-3 provides that “[a]lthough 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.”  In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App.Div.2010) requires proof that the decedent actually reviewed the document and thereafter gave his or her final assent to it.  The absence of either element would result in speculation as to whether the proposed writing accurately reflected the decedent’s final testamentary wishes.  The decision notes that in dispensing with technical conformity, the statute imposes evidential standards and safeguards appropriate to satisfy the fundamental mandate that the disputed instrument correctly expresses the testator’s intent.

   Here, the Court found that the decedent had given his final assent to the document as his Will.  Specifically, the Court found that the written notation on the cover page and the decedent’s repeated oral acknowledgements establishes proof of his intent.  The decedent’s other relatives – the niece and nephew – appealed.    

   On appeal, the Appellate Division was satisfied that clear and convincing evidence existed that the decedent reviewed and assented to the unexecuted document, and thus, the document would be accepted.

   The proponent also argued that the challenge was frivolous and sought sanctions under N.J.S.A. 2A:15-59.1(a)(1).  In denying the request, the decision notes that the objectors’ challenge was soundly based as the disputed document did not satisfy the formalities of N.J.S.A. 3B:3-2.

   Judge Skillman filed a dissent opining that the statute allows for the admission of a defectively executed Will, not an unexecuted Will.  Judge Skillman was on the panel that decided the Macool case and has changed his opinion on the scope of that decision.

   Judge Skillman also noted that the decedent, as a trusts and estates attorney, would have known that a draft Will had to be properly executed to become effective.  Additionally, he points out that the doctrine of probable intent is available only to interpret, but not to validate, a Will.  In his view, the proponent should prevail only if he established, in conformity with the common law authority dealing with lost Wills, that the unexecuted document was a copy of an original executed which was lost and not revoked. 

   The dissent results in the matter being appealable to the Supreme Court as of right.