In a recent and most thought provoking decision, the New Jersey Chancery Court admitted an unsigned Last Will & Testament to probate. See Matter of Anton, Superior Court of New Jersey (Ch. Div. 2015). By way of background, a valid New Jersey Last Will & Testament must generally be signed by the Testator in the presence of two witnesses.
In Matter of Anton, William Anton (the “Decedent”), was survived by his wife, with whom he was involved in divorce proceedings and by his three children. On June 24, 2015, the Decedent, along with his son-in-law Keith Riley, met with an estate planning attorney. During this meeting, the Decedent explained to the attorney that he could not locate his Will and as such, the attorney noted that if he died intestate during the pending divorce proceeding, his wife would inherit his entire estate. Accordingly, the Decedent asked the attorney to prepare a new Will, leaving his estate to his children; namely, one-third to his daughter, one-third to his son and one-third to be held in a grandchildren’s trust.
Shortly thereafter, on June 25, 2015, the attorney sent the Decedent a letter care of Mr. Riley confirming the parties’ understanding along with the fee arrangement. On June 30, 2015, Mr. Riley contacted the attorney and informed him that the Decedent had changed his mind with respect to the disposition of property; specifically, he wanted all beneficiaries to receive their inheritance outright. One week later, the attorney sent the Decedent a draft Will, Proxy Directive and Instruction Directive. Mr. Riley later contacted the attorney and in doing so, confirmed that the Decedent reviewed the drafts and had no changes whatsoever. Therefore, an appointment was scheduled for July 15, 2015. On July 14, 2015, the Decedent called Mr. Riley to confirm the appointment. The Decedent died on July 15, 2015, the very day of the appointment without having signed any of the documents.
In support of the Order to Show Cause to admit the unsigned Will to probate, the Decedent’s attorney certified that the Will presented for probate was identical to the drafts forwarded to the Decedent. The Decedent’s son-in-law Mr. Riley provided a supporting affidavit confirming that the Decedent had reviewed and expressly approved the draft Will. No opposition was filed and the matter was decided based on the paper submissions.
Upon hearing the submission, the Honorable Robert P. Contillo, P.J.Ch., granted the application. In so doing, the court cited N.J.S.A. 3B:3-3, which allows for the admission of an unsigned Will in limited situations where there is “clear and convincing evidence” that the decedent intended the document to constitute a Will. In its analysis, the court highlighted the scrivener’s affidavit attesting that the final copy of the Will, while never actually seen by the Decedent, mirrored that of the draft sent to him. Moreover, the court noted the son-in-law’s affidavit further establishing that the Decedent reviewed the draft without reservation thereby approving it. On balance, the court admitted the unsigned Will to probate.
An analysis of this recent decision indicates that New Jersey Chancery Courts may probate unsigned Wills under certain limited circumstances. The traditional rule has always been that a Will must be signed and witnessed. However, and pursuant to existing New Jersey law, a document may qualify as a “writing intended as a will” whether or not witnessed, if the signature and material provisions are in the Testator’s handwriting. Furthermore, even providing the document is not signed, it may still qualify as a Will if the Testator’s intent is clearly established. As noted, the criterion for maintaining such an argument is “clear and convincing evidence” which is notably a high standard. The rationale is to safeguard the probate process and ensure that the proposed document clearly expresses a Decedent’s final wishes. Matter of Anton is unique in that the court opined that it had uncontested ample evidence of the Decedent’s mindset in light of the supporting testimony and affidavit, all of which were consistent in nature. The absence of such evidence, however, would have likely resulted in the court applying the traditional rule requiring a signed writing.
Matter of Anton should not be relied upon as alternative guidance to probating a Will in New Jersey. As noted, this decision is from the New Jersey Trial Court and as such, it is not binding. In addition, the Executor in Matter of Anton had to file a lawsuit and apply formally for probate given the defects in the Will. Formal probate involves the filing of a lawsuit which can be time consuming and expensive. Such formality is generally not required however, as New Jersey allows for informal probate. The vast majority of cases involve informal probate whereby the Executor presents a duly executed Will to the Surrogate Court. If the facts of Matter of Anton were different in that the proposed Will had no defects, the Executor would not have had to even pursue the formal probate process.
Moreover, the dissenting opinion from a recent New Jersey probate case provides guidance. See Matter of Ehrlich, Superior Court of New Jersey (App. Div. 2012). There, the decedent, a trusts and estates attorney who practiced law for over fifty years in Burlington County passed away without having a fully executed Will. The decedent’s next of kin sought to admit a draft unsigned Will to probate. The draft Will was typed on legal paper; however, it was not signed nor witnessed. Nevertheless, the draft did contain the decedent’s own handwriting in a notation on the front cover. Upon reviewing all of the evidence, the court admitted the unsigned Will to probate. The court noted that the decedent had left a handwritten notation on the cover page of the draft evidencing that the original was intended to be sent to the Executor. Despite not being signed or witnessed, the court held the draft nonetheless qualified as a “writing intended as a will” under the New Jersey statute. The court relied upon Matter of Macool, which interpreted the New Jersey statute as permitting admission in cases where there is evidence that the decedent actually reviewed the Will and thereafter gave their final assent to it. See Matter of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010). In other words, the court held that the New Jersey statute was meant to excuse harmless error which includes within such definition the failure to sign a Will.
In the dissenting opinion, Judge Skillman disagreed and found that the governing statute does not broadly authorize the probate of an unsigned Will. Rather, and by its plain terms, the New Jersey statute was only meant to admit into probate a defectively executed Will, not an unexecuted Will. Judge Skillman examined the legislative history and concluded that the statute was designed to excuse only harmless errors such as where the testator misunderstands the attestation requirements and perhaps neglects to obtain one witness. However, and as per the dissent, harmless error in this setting does not include the failure to actually sign a Will which is clearly more significant.
Finally, it is noteworthy that the Decedent in Matter of Anton could have changed his mind leading up to his appointment with the estate planning attorney. Indeed, there was evidence that the Decedent had already changed his mind once before the final draft was sent out regarding the bequests. Therefore, it certainly begs the question whether the draft admitted to probate truly reflected his final wishes. It will be interesting to see whether Matter of Anton is appealed and the ultimate outcome.
For more information or if you have any questions about estate planning, please contact Judson M. Stein, Esq., Director of the Trusts & Estates Practice Group, at 973-230-2080 or firstname.lastname@example.org or John A. Grey, Esq., member of the Trusts & Estates Practice Group, at 973-230-2088 or email@example.com.