A decision issued by the Appellate Division in the Estate of Richard Ehrlich, allowed  the probate of a will lacking the requirements of N.J.S.A. 3B:3-2 because under N.J.S.A. 3B:3-3, there was clear and convincing evidence that the decedent intended the document, which he drafted, reviewed and gave his assent to, to constitute his last will and which reflected his final testamentary wishes.

N.J.S.A. 3B:3-2 contains the technical requirements for wills to be valid:

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 fails the requirements of N.J.S.A. 3B:3-2(a) or (b) can still be admitted to probate as a document intended as a Will if it meets the requirements 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 … .

In this case, the testator was a trusts and estate attorney. The document at issue – found by the primary beneficiary in the decedent’s home – was 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 Court agreed with the lower Court that the Will should be admitted to probate since there was clear and convincing evidence that the unexecuted document was reviewed and assented to by decedent and accurately reflects his final testamentary wishes, by the fact that:

• Decedent undeniably prepared and reviewed the challenged document.
• Decedent’s handwritten notation on its cover page demonstrates an intent that the document serve as its title indicates — [his] “Last Will and Testament”.
• Decedent acknowledged the existence of the Will to others.

Now, in addition to Matter of Macool, we are getting a better sense of the scope of Section 3-3.

Different Outcome in New York

As we also practice in New York, it is important to note that the result across the Hudson would be quite different.

In short, New York law does not have an analogue to the New Jersey law regarding writings intended as wills under N.J.S.A. 3B:3-3. The law in New York for the admission of a will to probate is interpreted very strictly. The New York Estates, Powers and Trusts Law (“EPTL”) § 3-2.1 provides that every will must be in writing and executed by the testator in the presence of at least two attesting witnesses. Moreover, the testator must declare to the attesting witnesses that the instrument is the testator’s will.

An instrument that is not executed or attested in the manner required by the statute is not admissible to probate. In re Cressey’s Will, 10 NY2d 918 (1961) (probate of instrument denied where testator did not declare the instrument to be her last will and testament, and she did not affix her signature prior to the time one of the witnesses affixed his).

There are two exceptions to this rule: nuncupative wills (spoken before two witnesses) and holographic wills (written entirely in the handwriting of the testator). EPTL § 3-2.2. Both of the testamentary exceptions found in EPTL § 3-2.2 are only available to:

(1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.

(2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.

(3) A mariner while at sea.

[EPTL § 3-2.2(b)]

It has been held that EPTL § 3-2.2 “extends a special privilege and it may not be extended beyond its true meaning.” In In re Estate of Dumont, 170 Misc 100, 103 (Sur Ct, New York County 1938). The court in Dumont found that the statute required the soldier to be in “actual military service.” Id. This meant not merely serving during a declared “state of war” but physically “in some place for the purposes of the war”. Id.

There is no statutory or common law provision in New York law which would allow a writing intended as a will to be admitted to probate unless it complied with the provisions of EPTL § 3-2.1 or EPTL § 3-2.2.

– mtt