Tuesday, July 18, 2017


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.
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.
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.
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
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.
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.
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030

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)