What happens when an estate attorney drafts a Will but never signs it? Should the will be enforceable? Should the courts allow the Will to be probated? Or, should the will be deemed invalid and barring the finding of another Will drafted by that attorney, should the estate be deemed intestate and be distributed according to the New Jersey rules of intestacy? These were the issues the Superior Court of New Jersey, Appellate Division decided in In re Ehrlich, 427 N.J. Super 64 (App. Div. 2012), certif. denied 213 N.J. 46 (2013), appeal dismissed, __ N.J. __ (2013).

The Facts of a Case Involving an Unsigned Will in New Jersey

Richard Ehrlich (“decedent”) was a trust and estate attorney who practiced in New Jersey. On September 21, 2009 he died. When he passed away he had no wife or kids of his own. The only family he had was the three children of his deceased bother: Todd and Jonathan Ehrlich and Pamela Venuto. Richard was not in contact with Todd and Pamela and had not been for over twenty years. Richard and Jonathan were in contact, to the point where Richard informed his friends as late as 2008 that Jonathan was the person to contact should Richard become ill or die and that his estate should be left to Jonathan should anything happen.

When Richard Ehrlich died, a search commenced to locate his Will. Jonathan located a copy of a purported Will in a drawer in Richard’s house. On December 17, 2009 Jonathan filed a verified Complaint with the court asking to have the purported Will admitted to probate. Todd and Pamela filed an Answer objecting to probate the purported Will. Although other searches of Richard’s home and office were done, no other document resembling a Will was ever located.

The Will that Jonathan submitted to the court to probate was a detailed fourteen-page document entitled “Last Will and Testament.” The document was typed on legal paper with Richard’s name and law office address printed in the margin of each page. Richard Ehrlich’s signature was not on the document, but it did include a notation in the right-hand corner of the cover page in Richard’s handwriting that the “‘Original mailed to H.W. Van Scriver, 5/20/2000[.]’ [sic]” Id. at 68. Mr. Van Scriver was to be the Executor of the written document with Jonathan as the contingent Executor. Mr. Van Scriver was also named the Trustee of the purported Will and Jonathan and Michelle Tarter were contingent Trustees. Mr. Van Scriver died prior to the decedent and the original Will described in the purported Will found by Jonathan was never returned or located.

Although he never updated the original sent to Mr. Van Scriver, Richard Ehrlich had told friends publicly that he had a Will and wished to delete a specific bequest in the Will. Although the decedent told his friends of his intentions, he never effectuated any changes to the original Will sent to Mr. Van Scriver, and no such document was ever found.

The Procedural History

Following the verified Complaint filed by Jonathan Ehrlich and the Answer by Todd Ehrlich and Pamela Venuto and discovery, the General Equity Judge granted Jonathan’s Complaint and admitted the found copy entitled “Last Will and Testament” of Richard Ehrlich. As the Appellate Division stated, the General Equity Judge reasoned that

[S]ince Mr. [Richard] [sic] 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 care 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.B.A. 3B:3-3 and [In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010)] [sic].

Ehrlich at 69.

The Appellate Division heard the appeal on April 23, 2012, and decided the case on June 29, 2012. At issue before the Appellate Division was “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.

The Appellate Division’s Reasoning

The court began its decision by noting that the technical requirements for a Will are found in N.J.S.A. 3B:3-2. The court also acknowledged that N.J.S.A. 3B:3-2(3)(b) allows for an exception to the requirements, which allows for a document to be probated as a Will “if the signature and material portions of the document are in the testator’s handwriting.” Furthermore, N.J.S.A. 3B:3-2(3)(c) states that “Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.”

Even if a Will does not fall in the rigid requirements of N.J.S.A. 3B:3-2, N.J.S.A. 3B:3-3 allows for a document to be treated as if it had been drafted under 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 . . . .”

The Superior Court of New Jersey, Appellate Division acknowledged that “[t]he trend toward excusing harmless errors is based on a growing acceptance of the broader principle that mistake . . . should not be allowed to defeat intention nor to work unjust enrichment.” Ehrlich at 71. The Appellate Division previously addressed the issue of the “harmless error” doctrine in In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010) when it held that “a writing need not be signed by the testator in order to be admitted to probate.” Ehrlich at 71, quoting Macool at 311.

In order for a writing to be admitted into probate under N.J.S.A. 3B:3-3 “the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.” Id., citing MaCool at 310.

The Appellate Division in Ehrlich noted that Section 3 should be liberally construed, but “the greater departure from Section 2’s formal requirement thee more difficult it will be to satisfy Section 3’s mandate that the instrument reflect the testator’s final testamentary intent.” Id. at 73.

The court found that “to overcome the deficiencies in formality, Section 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 thereafter assented to by the testator.” Id. at 74.

In applying the above requirements, the court found that Richard Ehrlich prepared the document and challenged the document. Id. The court also noted that Jonathan was the only living relative that the decedent had any meaningful contact with and “was the natural object of decedent’s bounty” of the Will submitted for probate. Id. These facts allowed the court to conclude that the document was reviewed the document.

Next the court needed to determine whether decedent gave his final assent to the document submitted for probate. The court reasoned that the notation on the cover page by the decedent led credence that Richard Ehrlich assented to the document submitted to probate to act as his Will. The court also used the fact that the decedent also executed a healthcare directive and a power of attorney on the same day to show the decedent’s intent to assent to the Will. Richard Ehrlich’s actions describing the Will to friends following its original drafting also was used by the court to show his assent to the document.

In reviewing all of the facts and circumstances surrounding this case, the Appellate Division found that “there is clear and convincing evidence that the unexecuted document challenged by appellants was reviewed and assented to by decedent and accurately reflects his final testamentary wishes.” Id. at 75. The court found that the General Equity Judge properly admitted the document submitted by Jonathan Ehrlich as Richard Ehrlich’s Last Will and Testament.

The Final Decision Regarding the Unsigned Will

While the Appellate Division held that the Will did not need to be signed, the facts of this case are very specific. There was a copy of the Will found which stated where the original Will was located. The decedent made his wishes known on several occasions which incorporated the Will. When Richard drafted and executed his original Will he also drafted and executed a healthcare directive and power of attorney, and the beneficiary of his Will was someone he communicated with regularly. However, this all could have been avoided if Richard Ehrlich had updated his Will in the years following the original drafting and his eventual death. If you do not have a Will you should speak with an attorney to draft a Will. If you already have a Will you should speak with an attorney every two to three years to update it. Had Richard Ehrlich updated his Will and informed someone of the new Will’s location, this most likely would have been avoided.

The estate planning attorneys of the Jayson Law Group can assist with a comprehensive estate plan that can cover questions regarding end-of-life healthcare, business succession, and other important matters.