SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
APPROVED FOR
PUBLICATION
June 29,
2012
APPELLATE
DIVISION
IN THE MATTER OF THE
ESTATE OF RICHARD D. EHRLICH,
Deceased.
_________________________________
June 29,
2012
Argued April
23, 2012 - Decided
Before Judges
Parrillo, Alvarez and Skillman.
On appeal
from Superior Court of New Jersey, Chancery Division, Probate Part, Burlington
County, Docket No. P-2009-2542.
Ethan J.
Ordog argued the cause for appellants/cross-respondents Todd Ehrlich and Pamela
A. Venuto (Begley Law Group, P.C., attorneys; Mr. Ordog, of counsel and on the
brief).
Paul R.
Melletz argued the cause for respondent/cross-appellant Jonathan Ehrlich
(Begelman, Orlow & Melletz, attorneys; Mr. Melletz, on the brief).
The opinion of the court was delivered by
PARRILLO, P.J.A.D.
Appellants Todd Ehrlich and Pamela Venuto appeal from an April 20,
2011 order of the General Equity Part admitting into probate the proffered Will
of Richard D. Ehrlich and from the June 20, 2011 order denying their motion for
reconsideration. Respondent Jonathan Ehrlich cross-appeals from the July 6, 2011
order denying his motion for sanctions under the Frivolous Litigation statute,
N.J.S.A. 2A:15-59.1. We affirm.
The material facts are not genuinely in dispute. Richard Ehrlich,
a trust and estates attorney who practiced in Burlington County for over fifty
years, died on September 21, 2009. His only next of kin were his deceased
brother's children — Todd and Jonathan Ehrlich and Pamela Venuto. The decedent
had not seen or had any contact with Todd or Pamela in over twenty years. He
did, however, maintain a relationship with Jonathan, who, he had told his
closest friends as late as 2008, was the person to contact if he became ill or
died, and to whom he would leave his estate.
Jonathan learned of his uncle's death nearly two months after the
passing. An extensive search for a Will followed. As a result, Jonathan located
a copy of a purported Will in a drawer near the rear entrance of decedent's
home, which, like his office, was full of clutter and a mess. Thereafter, on
December 17, 2009, Jonathan filed a verified complaint seeking to have the
document admitted to probate. His siblings, Todd and Pamela, filed an answer,
objecting. The court appointed a temporary administrator, Dennis P. McInerney,
Esquire, who had been previously named as Trustee of decedent's law practice,
and by order of June 23, 2010, directed, among other things, an inspection of
decedent's home. Pursuant to that order, on July 8, 2010, Jonathan, Todd and
Pamela, along with counsel and McInerney, accessed and viewed the contents of
decedent's home and law office. No other document purporting to be decedent's
Will was ever located.
The document proffered by Jonathan 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.
In relevant part, the purported Will provides a specific bequest
of $50,000 to Pamela and $75,000 to Todd. Twenty-five percent of the residuary
estate is to pass to a trust for the benefit of a friend, Kathryn Harris, who is
to receive periodic payments therefrom. Seventy-five percent of the residuary
estate is to pass to Jonathan.
It is undisputed that the document was prepared by decedent and
just before he was to undergo life-threatening surgery. On the same day this
purported Will was drafted — May 20, 2000 — 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.
Years after drafting these documents, decedent acknowledged to
others that he had a Will and wished to delete the bequest to his former friend,
Kathryn Harris, with whom he apparently had a falling out. Despite his stated
intention, decedent never effectuated any change or modification to his Will as
no such document ever surfaced, even after the extensive search conducted of his
home and law office after his death.
The contested probate matter proceeded on cross-motions for
summary judgment following completion of discovery. After hearing argument, the
General Equity Judge granted Jonathan's motion and admitted the copy entitled
"Last Will and Testament" of Richard Ehrlich 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)].
The judge later
denied Jonathan's motion for sanctions for frivolous litigation.
This appeal and cross-appeal follow.
I
At issue is 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. Since, as the parties
agree, there is no genuine issue of material fact, the matter was ripe for
summary judgment as involving only a question of law,
Brill
v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 529 (1995);
Judson v. Peoples Bank
& Trust Co. of
Westfield,
17
N.J. 67, 75 (1954), to which we owe the motion court no special deference.
Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan,
140
N.J. 366, 378 (1995).
N.J.S.A.
3B:3-2 contains the technical requirements for
writings intended as wills:
a. Except
as provided in subsection b. and in N.J.S.[A.] 3B:3-3, a will
shall be:
(1) in writing;
(2) signed by the testator or in the
testator's name by some other individual in the testator's conscious presence
and at the testator's direction; and
(3) signed by at least two
individuals, each of whom signed within a reasonable time after each witnessed
either the signing of the will as described in paragraph (2) or the testator's
acknowledgment of that signature or acknowledgment of the will.
b. A will
that does not comply with subsection a. is valid as a writing intended as a
will, whether or not witnessed, if the signature and material portions of the
document are in the testator's handwriting.
c. 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.
A document that
does not comply with the requirements of N.J.S.A. 3B:3-2a or b is
nevertheless valid as a document intended as a Will and may be admitted into
probate upon satisfaction of N.J.S.A. 3B:3-3, which provides:
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 . . . .
The Legislature
enacted N.J.S.A. 3B:3-3 in 2004, as an amendment to the New Jersey
Probate Code. L. 2004, c. 132, § 10, eff. Feb. 27, 2005. It is
virtually identical to Section 2-503 of the Uniform Probate Code (UPC), upon
which it was modeled. Senate Judiciary Committee, Statement
to Senate Bill No.
708, enacted as L. 2004, c. 132 (reprinted after
N.J.S.A. 3B:1-1). The comments to that Section by the
National Conference of Commissioners on Uniform State Laws express its clear
purpose: "[s]ection 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. Of particular note, the Commissioners' comments state that Section
2-503 "is supported by the Restatement (Third)
of Property: Wills and
Other Donative Transfers § 3.3 (1999)."
Recognizing that strict compliance with the statutory formalities has led to
harsh results in many cases, the comments to the Restatement explain,
. . . the
purpose of the statutory formalities is to determine whether the decedent
adopted the document as his or her will. Modern authority is moving away from
insistence on strict compliance with statutory formalities, recognizing that the
statutory formalities are not ends in themselves but rather the means of
determining whether their underlying purpose has been met. A will that fails to
comply with one or another of the statutory formalities, and hence would be
invalid if held to a standard of strict compliance with the formalities, may
constitute just as reliable an expression of intention as a will executed in
strict compliance.
. . . .
The trend
toward excusing harmless errors is based on a growing acceptance of the broader
principle that mistake, whether in execution or in expression, should not be
allowed to defeat intention nor to work unjust enrichment.
[Restatement
(Third) of Property, § 3.3 cmt. b
(1999).]
We recently had occasion to interpret N.J.S.A. 3B-3.3 in a
case wherein we held that under New Jersey's codification of the "harmless
error" doctrine, a writing need not be signed by the testator in order to be
admitted to probate. In re Probate
of Will and Codicil
of Macool, 416 N.J. Super. 298,
311 (App. Div. 2010).
[T]hat for a
writing to be admitted into probate as a will 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. Absent
either one of these two elements, a trier of fact can only speculate as to
whether the proposed writing accurately reflects the decedent's final
testamentary wishes.
[Id. at 310.]
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.
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?
Because
N.J.S.A. 3B:3-3 is remedial in nature, it should be liberally construed.
See Singleton v. Consolidated
Freightways Corp.,
64
N.J. 357, 362 (1974). Indeed, if the Legislature intended a signed and
acknowledged document as a condition precedent to its validation under Section
3, it would have, we submit, declared so expressly as did, for instance, the
Colorado Legislature in enacting its version of UPC § 2-503 and
N.J.S.A.
3B:3-3.
The fact that the Legislature chose
not to qualify its remedial measure as the dissent suggests is also consistent
with the Commissioners' commentary expressly citing those foreign jurisdictions
that excuse non-compliance with the signature requirement, although
"reluctant[ly]" so.
Unif. Probate Code, cmt.
on § 2-503. And like the Commissioners' discussion, the comments to the
Restatement also acknowledge that the absence of a signature is excusable,
albeit the "hardest" deficiency to justify as it raises serious,
but
not insuperable doubt."
Restatement
(Third) of Property, § 3.3 cmt. b (1999)
(emphasis added).
To be sure, as a
general proposition, the greater the departure from Section 2's formal
requirement, the more difficult it will be to satisfy Section 3's mandate that
the instrument reflect the testator's final testamentary intent. And while the
dissent's concern over the lack of a signature and attestation is obviously
understandable, their absence in this instance, as recognized by both sets of
commentators and the express wording of Section 3, does not present an
insurmountable obstacle.
Instead, 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 was thereafter assented
to by the testator. In other words, in dispensing with technical conformity,
Section 3 imposes evidential standards and safeguards appropriate to satisfy the
fundamental mandate that the disputed instrument correctly expresses the
testator's intent.
Here, as noted, 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 is to
receive the bulk of his uncle's estate under the purported Will, was the natural
object of decedent's bounty.
The remaining question then is whether, under the undisputed facts
of record, decedent gave his final assent to the document. 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."
Lest there be any doubt, in the years following the drafting of
this document, and as late as 2008, decedent repeatedly orally acknowledged and
confirmed the dispositionary contents therein to those closest to him in life.
The unrefuted proof is that decedent intended Jonathan to be the primary, if not
exclusive, beneficiary of his estate, an objective the purported Will
effectively accomplishes. Indeed, the evidence strongly suggests that this
remained decedent's testamentary intent throughout the remainder of his
life.
Moreover, decedent acknowledged the existence of the Will to
others to whom he expressed an intention to change one or more of the
testamentary dispositions therein. As the wife of decedent's closest friend
recounted: "And [Richard] has to change [the Will] because there is another
person that he gave, I don't know how you say it, annuities every month . . . in
case he passed away, and he wants to take her off the [W]ill. And by that time
Richard could barely write or sign, so I'm not surprised he didn't sign his
[W]ill." Although there is no evidence whatsoever that decedent ever pursued
this intention, the very fact that he admitted to such a document is compelling
proof not only of its existence but of decedent's belief that it was valid and
of his intention that it serve as his final testamentary disposition.
Given these circumstances, we are satisfied 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. As such, it was properly admitted to probate as his Last
Will and Testament.
The fact that the document is only a copy of the original sent to
decedent's executor is not fatal to its admissibility to probate. Although not
lightly excused, there is no requirement in Section 3 that the document sought
to be admitted to probate be an original. Moreover, there is no evidence or
challenge presented that the copy of the Will has in any way been altered or
forged.
As with the case of admitting a copy of a Last Will to probate
where the proof is clear, satisfactory, and convincing to rebut the presumption
of the original's revocation or destruction,
In re
Davis, 127
N.J. Eq. 55, 57 (E. & A. 1940);
In re Bryan, 125
N.J.
Eq. 471, 473-74 (E. & A. 1939);
In re
Calef's Will, 109
N.J. Eq. 181
(Prerog. Ct. 1931),
affirmed, on opinion
below, 111
N.J. Eq. 355 (E.& A. 1932),
cert. denied sub nom.,
Neely v. Stacy,
288
U.S. 606, 53
S. Ct. 397, 77
L. Ed.
981 (1933), here, as noted, the evidence is compelling as to the testamentary
sufficiency of the document, its preparation and reflection of decedent's
intent. As has been stressed, a court's duty in probate matters is "to ascertain
and give effect to the probable intent of the testator."
Fidelity
Union Trust,
supra, 36
N.J. at 564
(internal citations and quotation marks omitted). In our view, the challenged
document was properly admitted to probate because it meets all the
intent-serving benefits of Section 2's formality and we discern no need to
inflict the intent-defeating outcome requested by appellants and advocated by
the dissent.
II
That said, we
also find the court properly
exercised its discretion in not imposing sanctions under the Frivolous Litigation statute, N.J.S.A. 2A:15-59.1(a)(1). See United Hearts, L.L.C. v. Zahabian, 407
N.J.
Super.
379, 390 (App. Div.) (recognizing abuse of discretion as standard for review of an award of sanctions), certif. denied, 200
N.J. 367 (2009). "An 'abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)).
The Frivolous Litigation statute provides:
A party who
prevails in a civil action, either as a plaintiff or defendant, against any
other party may be awarded all reasonable litigation costs and reasonable
attorney fees, if the judge finds at any time during the proceedings or upon
judgment that a complaint, counterclaim, cross-claim or defense of the
nonprevailing person was frivolous.
[N.J.S.A. 2A:15-59.1(a)(1).]
To award costs to a prevailing party for a frivolous claim, the statute requires a showing that "the nonprevailing party either brought the claim in bad faith for harassment, delay, or malicious injury; or 'knew, or should have known that the complaint [or] counterclaim . . . was without [any reasonable] basis in law or equity . . . .'" Buccinna v. Micheletti, 311 N.J. Super. 557, 562-63 (App. Div. 1998) (quoting N.J.S.A. 2A:15-59.1(b)(2)).
Rule
1:4-8 also permits an attorney to be sanctioned for asserting frivolous claims on behalf of his or her client. United Hearts, L.L.C., supra, 407 N.J. Super. at 389. An assertion is deemed frivolous when "'no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.'" First Atl. Fed. Credit Union v. Perez, 391
N.J.
Super.
419, 432 (App. Div. 2007) (quoting Fagas v. Scott, 251
N.J.
Super.
169, 190 (Law Div. 1991)). Where a party has a reasonable and good faith belief in the claims being asserted, reallocation of attorneys' fees and expenses will not be awarded. Ibid. Moreover, "a pleading will not be considered frivolous for purposes of imposing sanctions under Rule 1:4-8 unless the pleading as a whole is frivolous." United Hearts, L.L.C., supra, 407 N.J. Super. at 394. Thus, when some allegations are later proved unfounded, a complaint is not rendered frivolous if it also contains non-frivolous claims. Id. at 390.
Here, there was no showing that appellants' objection to probate
was filed "in bad faith, solely for the purpose of harassment, delay or
malicious injury" or had no "reasonable basis in law or equity." N.J.S.A.
2A:15-59.1(b)(2). Indeed, appellants' challenge was soundly based as the
disputed document did not satisfy the formalities of N.J.S.A. 3B:3-2. The
document was not witnessed, notarized or dated, and was only a copy of a
purported original. Consequently, to be admitted to probate, the document had to
satisfy N.J.S.A. 3B:3-3, which placed a heavy burden of proof upon the
document's proponent. Given the nature of that document's departure from Section
2's technical requirements, it was neither unreasonable nor unfair for
appellants to hold respondent to his rather exacting statutory burden. As
properly noted by the motion judge, there was nothing in the record to suggest
appellants' objection was filed to harass, delay or cause malicious injury. As
there was a reasonable basis for appellants' claims in law and equity, the court
properly denied respondent's motion for sanctions for frivolous litigation.
Affirmed.
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). 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 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 writing, 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 one the trial court admitted to
probate, which does not contain either the signature of the decedent or any form
of attestation. 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 (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 (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.
The comments to section 2-503 of the 1990 Uniform Probate Code and
section 3.3 of the Restatement (Third) of
Property both 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 (1962), that "a court's duty in probate matters is 'to
ascertain and give effect to the probable intent of the testator.'"
Ante
at 16. 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 (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.
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 cases, 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 (E. & A. 1940);
In re
Will of Bryan, 125
N.J.
Eq. 471 (E. & A. 1939);
Campbell v.
Smullen, 96
N.J. Eq. 724, 725-29, 733-34 (E.
& A. 1924);
In re Will
of Roman, 80
N.J. Super. 481 (Law
Div. 1963);
In re Will of
Calef, 109
N.J. Eq. 181 (Ch. 1931),
aff'd o.b., 111
N.J. Eq. 355 (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 (Ch. 1898),
aff'd o.b.,
60
N.J. Eq. 447 (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 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.
