In re Estate of Richard Ehrlich, 427 N.J. Super. 64 (App. Div. 2012). Richard Ehrlich, a trust and estates lawyer, died. The only purported will of his that could be found was a fourteen-page document typed on traditional legal paper with Ehrlich’s name and law office address printed on each page. Neither Ehrlich nor any witness signed the document. However, Ehrlich made a handwritten note on the cover page that the original had been mailed to the man whom Ehrlich had designated as his executor. That man died before Ehrlich did, and the original was never returned.
On the same date as the will, which was right before he was to undergo life-threatening surgery, Ehrlich executed a power of attorney and a health care directive, both of which were witnessed by the same person. Thereafter, Ehrlich orally confirmed that he had made a will and, later, that he intended to change it to eliminate one beneficiary with whom he had had a falling out.
One of Ehrlich’s children, Jonathan, who was the only relative with whom Richard had any real relationship and was a chief beneficiary under the will, sought to admit the document to probate. Two of Jonathan’s siblings, Todd and Pamela, objected. On cross-motions for summary judgment, the Chancery Division, Probate Part, admitted the will to probate. Jonathan sought frivolous litigation sanctions, which that court denied.
Todd and Pamela appealed. The Appellate Division affirmed in a 2-1 vote. Judge Parrillo, who wrote the majority opinion, was joined by Judge Alvarez in that ruling. Judge Skillman dissented.
N.J.S.A. 3B:3-2 requires that a will be in writing and signed by the decedent or by someone else in the decedent’s conscious presence and at the decedent’s direction. But N.J.S.A. 3B:3-3 makes valid a will that does not comply with the requirements of section 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” the decedent’s will. Section 3, which was modeled on the Uniform Probate Code, was intended to “retain the intent-serving benefits of [section 2] without inflicting intent-defeating outcomes in cases of harmless error.” Judge Parrillo stated that “[t]his 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'” (quoting In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010)). As a remedial statute, section 3 is to be liberally construed.
The majority concluded that, in all the circumstances, the unsigned will was properly probated. Ehrlich prepared the will and knew it was, as its title stated, his “Last Will and Testament.” It was one of several documents prepared before his surgery, made Jonathan a prime beneficiary since Jonathan was the only relative with whom Ehrlich had a real relationship, and was recognized orally by Ehrlich on multiple occasions in later years. Even the fact that he intended to eliminate one beneficiary showed that Ehrlich treated this document as his will, though he never did make that change. All this added up to clear and convincing evidence that justified admitting the will to probate under section 3.
Judge Skillman dissented. He argued that section 3 rescued only a will that was “not executed in compliance with” section 2, not a will that was not executed at all. Though he had been on the panel in Macool that had accepted another unsigned will, Judge Skillman had meanwhile “concluded that that opinion gives too expansive an interpretation” to section 3.
Given Judge Skillman’s dissent, this issue is ripe for review as of right in the Supreme Court. We doubtless have not heard the last of this issue.
All three judges rightly concluded, however, that there was no basis for Jonathan’s demand for frivolous litigation sanctions. The document was not signed, and Todd and Pamela thus had a reasonable basis to challenge its admission to probate.