So A Family Member Died and You Can’t Find the Will

By Louis Pashman, Esq.
lpashman@pashmanstein.com

The general rule is that a will must be executed with certain rather specific requirements.  NJSA 3B:3-1 and 2.  When New Jersey adopted the Uniform Probate Code, however, it adopted the “harmless error” doctrine, NJSA 3B:3-3.  Most states have not adopted that provision.  The statute provides that a writing will be treated as if it complies with the formal requirements of execution if it can be shown by clear and convincing evidence that:

  1. The document presented was intended by the decedent to be his will; or
  2. A complete or partial revocation of a will; or
  3. An addition to or alteration of a will; or
  4. A partial or complete revival of a formerly revoked will or portion of the will.

In Re Estate of Ehrlich, 427 NJ Super 64 (App. Div. 2012) examined the “harmless error” statute.  That court found that an unexecuted copy of a will could be admitted to probate under the circumstances of that case.  Those circumstances were, it must be noted, compelling.

First, the decedent was himself a lawyer and the copy presented was on formal legal size paper with the decedent’s office name and address printed on each page.  There was a notation in the margin of the first page, in decedent’s handwriting, that the original had been sent to the person named in the document as the executor (that individual predeceased decedent and the original will obviously was never found).  The document was prepared just before decedent was to undergo life-threatening surgery.  Decedent survived the surgery and years later he talked to others about the will and the possibility of revising it.  The primary beneficiary was the only relative with whom decedent had any meaningful relationship.

One of the appellate judges dissented.  He would have held that the statute does not permit admission to probate of an unexecuted document, only a defective will.  The Supreme Court refused to hear the case.

It seems that the lesson to be learned from this is that an unexecuted document can be admitted to probate as a will, but it will not be easy.  The evidence showing that the Ehrlich document met the requirements of NJSA 3B:3-3 was overwhelming .  As the court noted, “the greater the departure from … [NJSA 3B:3-1 and 2] formal requirements the more difficult it will be to satisfy … [NJSA 3B:3-3].”

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