Probating Noncompliant Wills in New Jersey
Executing wills is tricky business. Different states’ Wills Acts can require a myriad of formalities for devising a will. Sometimes even the slightest of errors can lead an entire estate plan to fall into intestacy. Two equitable remedies exist for courts to curate statutorily noncompliant wills: the “harmless error” rule and the substantial compliance doctrine. New Jersey courts continue to apply both doctrines in different contexts.
Substantial Compliance and Harmless Error: What’s the Difference?
Substantial compliance and harmless error have similar judicial objectives, but very different histories. Professor John Langbein formally introduced the doctrine of substantial compliance in his 1975 article Substantial Compliance with the Wills Act, although courts had been applying this doctrine in essence for several decades prior. A key difference between the two curative doctrines is that courts do not require legislative intervention to apply the substantial compliance doctrine.
Substantial compliance allows judges to validate wills that do not meet all Wills Act formalities if the document in question sufficiently performs the purpose of those formalities. Courts consider whether following strict compliance with these formalities would frustrate the intent of the testator and the purpose of the Wills Act. Judges look at extrinsic evidence, including witness testimony, to make this determination. Jurisdictions have differing standards for substantial compliance, with some courts requiring at least a minimal threshold of compliance with wills formalities (for example, the testator’s signature), whereas others may solely look to whether a document expresses the seriousness required to be probated as a testamentary instrument.
In comparison, the harmless error rule allows judges to excuse a will’s noncompliance with Wills Act formalities as long as there is clear and convincing evidence that the testator intended the document to act as their will. For instance, courts can correct signatures, improper codicils, or grammatical errors using this rule. The 1991 addition of Section 2-503 of the Uniform Probate Code provided a harmless error provision. Despite this, only a few states have since adopted similar provisions. Currently, nine states have harmless error provisions in their Wills Acts: California, Colorado, Hawai, Michigan, Montana, New Jersey, South Dakota, Utah, and Virginia.
Unlike some other harmless error provisions, New Jersey courts can admit writings without the testator’s signature to probate, while also liberally construing the placement of signatures. In Matter of Estate of Siegel, 214 N.J. Super. 586, 520 A.2d 798 (App. Div. 1987), the Superior Court of New Jersey probated a will the testator had signed in the prefatory paragraph of his holographic will. In contrast, the Court declined to apply the substantial compliance doctrine to holographic wills in In re Will of Ferree, 369 N.J. Super. 136, 848 A.2d 81 (Ch. Div. 2003), holding that this exception would water down the application of wills formalities too greatly. As you will read below, New Jersey has developed an extensive jurisprudential history of probating defective wills in comparison with other states.
Matter of Will of Ranney
In re Will of Ranney, 124 N.J. 1, 589 A.2d 1339, 1991), decided before New Jersey adopted a harmless error provision, is one of the most widely cited examples of substantial compliance in the United States. The Supreme Court of New Jersey probated a will that did not have the witnesses’ signatures on it. Two witnesses signed affidavits attesting that they witnessed the testator execute his will, but they did not sign the will itself. Citing both section 2-503 of the UPC and section 3.3 Restatement (Second) of Property (Donative Transfers) (Restatement), which endorses the harmless error rule, the Court ruled that substantial compliance applied to the formal defect at bar.
In re Prob. of Will & Codicil of Macool
In In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298, 3 A.3d 1258 (App. Div. 2010), Louise and Elmer Macool were married for forty years. They had no biological children together, but Louise raised Elmer’s seven children from his previous marriage as her own. In 1995, Louise and Elmer went to an attorney to execute a will for Louise naming Elmer as her sole beneficiary and her seven stepchildren and their issue as contingent beneficiaries. After Elmer passed away, Louise went to her attorney to make changes to her will. She gave him a handwritten note instructing him to add her nieces as beneficiaries. Her attorney used the note to dictate the entire will while she was present in his office.
An hour after leaving her attorney’s office, Louise died. She never reviewed the typed document. Louise’s niece, Mary, submitted the draft will to probate despite it not having been signed or witnessed. The trial court found that the draft will did not meet statutory requirements. Although her handwritten note suggested Louise wanted her nieces to be beneficiaries of her estate, she did not intend the draft will to be her final will. The trial court also held that a will must have its testator’s signature to apply the harmless error rule.
The appellate court agreed with the trial court that Louise did not intend the draft will to be her final will. The court provided two criteria for a will to be admitted under N.J.S.A. 3B:3–3: “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.” Since she died before being able to review the document her lawyer had drafted, the court determined that Louise had not satisfied either requirement. However, the court disagreed that the New Jersey harmless error provision requires a will to be signed. Even though the court did not validate the draft will, Macool set a precedent that courts would validate unsigned wills under the harmless error rule.
In Re Estate of Ehrlich
In re Estate of Ehrlich, 427 N.J. Super. 64, 47 A.3d 12 (App. Div. 2012) provides a much broader reading of the harmless error rule than Macool. Prior to passing away in 2009, trust and estates attorney Richard Ehrlich told friends that he was leaving his estate to his nephew Jonathan and nothing to his estranged nephew and niece, Todd and Pamela. After Richard’s death, Jonathan searched his house and found a document titled “Last Will and Testament” with no signatures by the decedent or any witnesses. The purported will was typed but included notations in Richard’s handwriting in the margins. It listed testamentary dispositions to Jonathan, Todd, and Pamela.
The appellate court upheld the trial court’s ruling, admitting the unexecuted, unsigned document to probate under the harmless error rule. The majority was satisfied by “clear and convincing evidence” that the document expressed Richard’s testamentary intent. Although it cited the harmless error rule, the Court’s deference to a document that only minimally satisfied statutory requirements suggests a minimal threshold of substantial compliance.
In contrast, the dissenting judge cited persuasive authority from other harmless error jurisdictions like South Australia and Israel, where courts have been apprehensive to probate unsigned wills. The Restatement also states that a lack of signature is the hardest execution error to excuse. The dissent asserted that the Court should consider the document as a “lost will,” rather than a noncompliant will under the harmless error doctrine. The only formal requirement the document met was that it was in Richard’s writing. The dissent also argued that, as an estate attorney, Richard would have been aware of the statutory requirements of signatures and witness attestations. Furthermore, Jonathan found the purported will in a stuffed drawer in a messy office. Finally, witnesses testified that Richard had indicated his intent to exclude Todd and Pamela from his will. Ehrlich remains a contentious decision.
Matter of Will Bradway
In In re Will of Ranney, 124 N.J. 1, 589 A.2d 1339, 1991), the Superior Court determined whether to validate a holographic codicil to a will written in the decedent’s blood. E. Warren Bradway was in a long-term partnership with Marc Coleman. Bradway executed a will in 2001 naming Coleman as his primary beneficiary and executor of his estate. In 2004, the couple split and subsequently they both entered into relationships with new partners. In 2006, Bradway drafted a one-page holographic codicil to his 2001 Will in his own blood, naming his new partner as his primary beneficiary and executor. At trial, Coleman contested the validity of the codicil, arguing that neither the handwriting nor the signature in the codicil were executed by Bradway. The trial court concluded based on extrinsic evidence that the codicil was valid under the harmless error doctrine.
The Superior Court cited Macool when it held that codicils need not be signed by the testator to be admitted to probate. Therefore, the contention over whether Bradway signed the codicil was not relevant. The Court cited clear and convincing evidence that Bradway intended the codicil to alter his 2001 will, including witness testimony and the fact that he wrote the codicil in his own blood. It admitted the codicil to probate.
Conclusion
In 2018, the New Jersey state legislature proposed a bill with the goal of overturning Ehrlich. It argued that Ehrlich exposed courts’ overreach in probating statutorily noncompliant wills. Assembly Bill No. 1176 proposed adding the following requirement to the harmless error provision: “the document or writing is signed by the testator or is substantially in the testator’s handwriting…” The bill failed. New Jersey remains one of the most lenient jurisdictions concerning statutory formalities for executing wills. Estate planners and their testators must take extra care not to amend an estate plan inadvertantly and spark a contested probate contest.
