# In re the Estate Ehrlich

> New Jersey Superior Court Appellate Division · June 29, 2012 · 427 N.J. Super. 64

URL: https://www.frixlaw.com/law-library/cases/7323754

## Case

- **Full name:** IN THE MATTER OF THE ESTATE OF RICHARD D. EHRLICH
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** June 29, 2012
- **Citations:** 427 N.J. Super. 64; 47 A.3d 12; 2012 N.J. Super. LEXIS 114; 2012 WL 2470122
- **Precedential status:** Published
- **Opinion:** Dissent by Skillman
- **Judges:** Parrillo, Skillman
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7323754

## How later opinions describe it (automated extraction)

- explaining that the policy behind N.J.S.A. 3B:3-3 is to avoid harsh results that may follow strict application of the formal requirements
- affirming a trial court's refusal to impose sanctions under the Frivolous Litigation Statute when there was a good faith and reasonable basis in law for the claim
- noting proof must be "clear satisfactory, and convincing to rebut the presumption of the original's revocation or destruction" (citations omitted)

## Opinion text

SKILLMAN, J.A.D.
(retired and temporarily assigned on recall), dissenting.
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. Therefore, I dissent.
By its plain terms, N.J.S.A. 3B:3-3 only allows the admission to probate of a defectively executed will, not an unexecuted will. N.J.S.A. 3B:3-3 provides that if “a document ... was not executed in compliance with N.J.S.A. 3B:3-2,” it may nonetheless be “treated as if it had been executed in compliance with N.J.S.A. 3B:3-2 if the proponent ... establishes by clear and convincing evidence that the decedent intended the document or writing to constitute [his or her] will.” Thus, N.J.S.A. 3B:3-3 may be invoked only in a circumstance where the document “was not executed in compliance with N.J.S.A. 3B:3-2”; it does not apply if the document was not executed at all.
The conclusion that N.J.S.A. 3B:3-3 was only intended to authorize the admission to probate of a defectively executed will, and not an unexecuted will, is confirmed by its legislative history. N.J.S.A. 3B:3-3 was enacted in 2004 as one of a series of amendments to the New Jersey Probate Code. L. 2004, c. 132. The Senate Judiciary Committee’s statement to the bill states that it was “modeled upon the 1990 version of the Uniform Probate Code.” Senate Judiciary Committee, Statement to Senate Bill No. 708, enacted as L. 2004, c. 132 (reprinted after N.J.S.A. 3B:1-1). 1 *79 N.J.S.A. 3B:3-3 is virtually identical to section 2-503 of that Uniform Probate Code. Therefore, it is appropriate to consider the comments of the National Conference of Commissioners on Uniform State Laws to determine the circumstances under which N.J.S.A. 3B:3-3 may be relied upon to admit to probate a writing that has not been executed in conformity with N.J.S.A. 3B:3-2.
The Commissioners provided the following explanation of the purpose of adding section 2-503 to the Uniform Probate Code:
By way of dispensing power, this new section allows the probate Court to excuse a harmless error in complying with the formal requirements for executing or revoking a will. The measure accords with legislation in force in the Canadian province of Manitoba and in several Australian jurisdictions. The Uniform Laws Conference of Canada approved a comparable measure for the Canadian Uniform Wills Act in 1987.
Legislation of this sort was enacted in the state of South Australia in 1975____A similar measure has been in effect in Israel since 1965____
Consistent with the general trend of the revisions of the UPC, Section 2-503 unifies the law of probate and nonprobate transfers, extending to will formalities the harmless error principle that has long been applied to defective compliance with the formal requirements for nonprobate transfers.
Evidence from South Australia suggests that the dispensing power will be applied mainly in two sorts of cases____When the testator misunderstands the attestation requirements of Section 2-502(a) and neglects to obtain one or both witnesses, new Section 2-503 permits the proponents of the will to prove that the defective execution did not result from irresolution or from circumstances suggesting duress or trickery — in other words, that the defect was harmless to the purpose of the formality. The measure reduces the tension between holographic wills and the two-witness requirement for attested wills under Section 2-502(a). Ordinarily, the testator who attempts to make an attested will but blunders will still have achieved a level of formality that compares favorably with that permitted for holographic wills under the Code.
The other recurrent class of case in which the dispensing power has been invoked in South Australia entails alterations to a previously executed will. Sometimes the testator adds a clause, that is, the testator attempts to interpolate a defectively executed codicil. More frequently, the amendment has the character of a revision — the testator crosses out former text and inserts replacement terms. Lay persons do not always understand that the execution and revocation requirements of Section 2-502 call for fresh execution in order to modify a will; rather, lay persons often think that the original execution has continuing effect.
By placing the burden of proof upon the proponent of a defective instrument, and by requiring the proponent to discharge that burden by clear and convincing evidence (which Courts at the trial and appellate levels are urged to police with rigor), Section 2-503 imposes procedural standards appropriate to the seriousness *80 of the issue. Experience in Israel and South Australia strongly supports the view that a dispensing power like Section 2-503 will not breed litigation____
The larger the departure from Section 2-502 formality, the harder it will be to satisfy the Court that the instrument reflects the testator’s intent. Whereas the South Australia and Israeli Courts lightly excuse breaches of the attestation requirements, they have never excused noncompliance with the requirement that a will be in wilting, and they have been extremely reluctant to excuse noncompliance with the signature requirement. The main circumstance in which the South Australian Courts have excused signature errors has been in the recurrent class of cases in which two wills are prepared for simultaneous execution by two testators, typically husband and wife, and each mistakenly signs the will prepared for the other____
Section 2-503 means to retain the intent-serving benefits of Section 2-502 formality without inflicting intent-defeating outcomes in cases of harmless error. [Unif. Probate Code, cmt. on § 2-503 (citations omitted).]
In addition, the Commissioners’ comments state that Section 2-503 “is supported by the Restatement (Third) of Property: Wills and Other Donative Transfers § 3.3 (1999).” That section provides:
A harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.
[Restatement (Third) of Property § 3.3 (1999).]
The comments to this section of the Restatement state:
... 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. A particularly attractive case for excusing the lack of the testator’s signature is a crossed will case, in which, by mistake, a wife signs her husband’s will and the husband signs his wife’s will. Because attestation makes a more modest contribution to the purpose of the formalities, defects in compliance with attestation procedures are more easily excused.
[Restatement (Third) of Property, § 3.3 cmt. b (1999).]
Thus, both the comments to section 2-503 of the 1990 version of the Uniform Probate Code, from which N.J.S.A. 3B:3-3 was derived, and the comments to the Third Restatement of Property, which are cited with approval in the comments to the Uniform Probate Code, indicate that N.J.S.A. 3B:3-3 only authorizes probate of a defectively executed will, and not a document such as the *81 one the trial court admitted to probate, which does not contain either the signature of the decedent or any form of attestation. 2 This view of the intent of section 2-503 of the 1990 Uniform Probate Code is also reflected in In re Will of Ranney, 124 N.J. 1, 10 , 589 A.2d 1339 (1991), decided before our Legislature’s enactment of N.J.S.A. 3B:3-3, in which the Court described section 2-503 as adopting “the doctrine of substantial compliance.”
The majority’s decision relies heavily upon this court’s interpretation of N.J.S.A. 3B:3-3 in In re Will of Macool, 416 N.J.Super. 298, 310 , 3 A.3d 1258 (App.Div.2010), which concluded that for a will to be admitted to probate under this section, it must be established “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.” 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. See id. at 310-12 , 3 A.3d 1258 .
The comments to section 2-503 of the 1990 Uniform Probate Code and section 3.3 of the Restatement (Third) of Property both *82 indicate that N.J.S.A. 3B:3-3 may be invoked only if there has been “harmless error” in the execution of a will, or what the Court in Ranney characterized as “substantial compliance” with the requirements for execution of a will. Under this view of N.J.S.A. 3B:3-3, a will could be admitted to probate if, as described in the comments to both the Code and Restatement, a husband and wife mistakenly signed each other’s wills, or as described in illustration two in the comments to section 3.3 of the Restatement, a testator began signing his or her will but suddenly died before completing the signature. However, a mere verbal “assent” to the terms of a will that was not formalized by any signature on the document would not satisfy the prerequisites of N.J.S.A. 3B:3-3.
Moreover, even if it were appropriate to give N.J.S.A. 3B:3-3 a more expansive interpretation than is supported by the comments to the 1990 Uniform Probate Code and Third Restatement of Property, it still would not be appropriate to admit the unexecuted copy of the decedent’s will to probate. The decedent was a trusts and estates attorney, who certainly would have known that a draft will had to be properly executed to become effective. Consequently, he could not have “intended the [unexecuted copy of the document] to constitute [his] will.”
The majority states, quoting Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564 , 178 A.2d 185 (1962), that “a court’s duty in probate matters is ‘to ascertain and give effect to the probable intent of the testator.’ ” Ante at 76, 47 A.3d at 19. However, “the doctrine of probable intent is available only to interpret, but not to validate, a will.” In re Will of Smith, 108 N.J. 257, 265 , 528 A.2d 918 (1987). “Probable intent comes into play only after a will is found to be valid.” Ibid. Therefore, even if the probate of the decedent’s unexecuted will would be more likely to effectuate his testamentary intent than intestacy, a draft will that was not executed in conformity with N.J.S.A. 3B:3-2 and does not satisfy the prerequisites of N.J.S.A. 3B:3-3 may not be admitted to probate.
*83 Although N.J.S.A. 3B:3-3 does not authorize the admission to probate of the unexecuted copy of the decedent’s purported will, there is a common law doctrine under which a copy of a lost will may be admitted to probate if the party seeking probate can present satisfactory evidence of the original will’s contents and execution and that the will was not revoked before the testator’s death. See generally 3 Bowe-Parker, Page on Wills, §§ 27.1 to .15; 29.156 to .166 (3rd ed.2004). The term “lost will” includes a will “which may be in existence but which cannot be found so as to be produced for probate.” Page on Wills, supra, § 27.1, p. 433. There are New Jersey eases, mostly quite old, dealing with the attempts to admit copies of alleged lost original wills to probate in accordance with this common law doctrine. See, e.g., In re Will of Davis, 127 N.J.Eq. 55, 11 A.2d 233 (E. & A.1940); In re Will of Bryan, 125 N.J.Eq. 471, 5 A.2d 774 (E. & A.1939); Campbell v. Smullen, 96 N.J.Eq. 724, 725-29, 733-34, 125 A. 569 (E. & A.1924); In re Will of Roman, 80 N.J.Super. 481 , 194 A.2d 40 (Co.1963); In re Will of Calef, 109 N.J.Eq. 181, 156 A. 475 (Prerog.1931), aff'd o.b., 111 N.J.Eq. 355, 162 A. 579 (E. & A.1932), cert. denied, 288 U.S. 606 , 53 S.Ct. 397 , 77 L.Ed. 981 (1933); Coddington v. Jenner, 57 N.J.Eq. 528, 41 A. 874 (Ch.1898), aff'd o.b., 60 N.J.Eq. 447, 45 A. 1090 (E. & A.1900).
Despite Jonathan Ehrlich’s reliance upon N.J.S.A. 3B:3-3 in seeking to probate the unexecuted copy of the decedent’s will found after his death, Jonathan does not appear to claim that the decedent actually intended that document to be his will, as required for probate under N.J.S.A. 3B:3-3. Instead, Jonathan’s claim appears to be that the will found in the decedent’s home was an unexecuted copy of an original executed will, which the decedent sent to his executor Van Sciver, and that the original was lost by Van Sciver or Van Sciver’s estate after his death. For the reasons previously discussed, N.J.S.A. 3B:3-3 does not address such a claim.
In my view, Jonathan is entitled to prevail only if he can show, in conformity with the common law authority dealing with lost *84 wills, that the unexecuted will found in the decedent’s home is a copy of an original executed will sent to Van Sciver, which was lost and not revoked by the decedent. However, because this case was presented solely under N.J.S.A. 3B:3-3, the trial court did not make any findings of fact regarding these issues. Indeed, the trial court concluded that the copy of the will found in the decedent’s home could be admitted to probate under N.J.S.A. 3B:3-3 “[e]ven if the original ... was not signed by [the decedent].” Therefore, I would remand to the trial court to make such findings. I would not preclude the parties from moving to supplement the record to present additional evidence on the question whether the unexecuted copy of the will found in the decedent’s home may be admitted to probate as a copy of the alleged executed original sent to Van Sciver.
For these reasons, I dissent from the part of the majority opinion affirming the judgment admitting the decedent’s unexecuted will to probate. I concur with the part of the majority opinion affirming the denial of Jonathan’s application for counsel fees under the Frivolous Litigation Statute.
This Committee statement was identical to the Sponsor’s statement.
In re Estate of Hall, 310 Mont. 486 , 51 P.3d 1134 (2002), cited in footnote three of the majority opinion, is an example of a case involving a defectively executed will that was admitted to probate under Montana's version of section 2-503 of the Uniform Probate Code. In that case, the decedent and his wife had their attorney draft a joint will. Id. at 1135. When the couple met in the attorney’s office to discuss the draft, they made several handwritten changes. Id. at 1136. At the end of the meeting, the decedent asked whether the draft could stand as their will until the attorney sent them a final version. Id. at 1135. When the attorney said it could, the decedent and his wife both signed the draft will and the attorney notarized it. Ibid. Thus, the draft will was executed with all the required formalities except for the signatures of two attesting witnesses. The decedent died before he executed a typed version of the revised draft will. Ibid. Under these circumstances, the court concluded that the defectively executed draft joint will could be admitted to probate. Id. at 1136.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7323754. Public record. Not legal advice.