The Ever Expanding Definition of What Constitutes A Will

One of the most important legal documents an individual can ever execute is his or her Will. Until recent years, it was a formal writing prepared by a lawyer to insure that one’s assets were passed to his or her heirs. Yet over the past few decades, alternative planning methods have arisen. Moreover, New Jersey law has begun to allow for the admission of forms that do not comply with statutory law as Wills. Thus, the purpose of this article is to review what constitutes a Will and how imperfect documents might nevertheless be admitted to probate.

At the outset, it should be stressed that individuals should have their Wills prepared by competent counsel. Those who use unqualified lawyers, computer programs and trust mills for their estate planning often trigger disaster for a variety of reasons. These include inadvertently disinheriting loved ones, allocating one’s estate among the wrong beneficiaries and failing to recognize the interrelationship of Wills with non-probate assets. Some of these deficiencies can be corrected though.

Historically, the procedural requirements to execute a Will have been very strict. N.J.S.A. 3B:3-2 states for a Will to be valid it must be in writing and executed by the testator in the presence of two witnesses. Wills that did not meet these requirements simply were not admitted to probate except for holographic Wills (those entirely in a decedent’s handwriting) which, though, required an order of the probate court.

In 2005, New Jersey statutory law was modified to allow for the possibility of documents to be accepted into probate that do not conform with the traditional will statute as valid testamentary writings. Specifically, in relevant part, N.J.S.A. 3B:3-3, entitled Noncompliant execution; Clear and convincing evidence of intent, states, “Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document of writing is treated as if it had been executed in accordance with N.J.S.A. 3B:3-2 if the proponent of the document of writing establishes clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will…” This represented a substantial change in the State of New Jersey’s probate laws.

This legislation created what is commonly known as the “doctrine of substantial compliance”. Since then, a number of cases have been decided to define this concept. The initial case in this area was In the Matter of the Probate of the Alleged Will and Codicil of Macool, Deceased, 416 N.J. Super. 298 (App. Div. 2010). In that case, Louise Macool sought to change her Will after her husband died to expand the residuary beneficiaries from her seven stepchildren to two nieces as well. She spoke with her attorney and he dictated same in her presence. However, she died one hour after leaving the attorney’s office. The court found that clear and convincing evidence existed to demonstrate that Louise Macool wanted to change her testamentary plan and include her two nieces. However, the draft will was not admitted to probate. Specifically, the Court held that her untimely death prevented her from: (1) reading the draft will prepared by her attorney; and (2) conferring with her counsel after reviewing the draft document to clear up any ambiguities, modify any provision or express her final assent to the rough draft. Yet, in clarifying N.J.S.A. 3B:3, the Appellate Division held that an unexecuted or defective writing may be admitted to probate as a Will if there is clear and convincing evidence that: (1) the decedent actually reviewed the document in question, and (2) thereafter gave his or her final assent to it.

Based on the terms of the Macool case as well as the change in statute, case law was set forth legitimizing the doctrine of substantial compliance in In re Ehrlich, 427 N.J. Super. 64 (App. Div. 2012). In that case, it was held that an unexecuted copy of a lost will was to be admitted to probate based on the Court’s finding that same had been executed at the time it was prepared. Based on these two cases and their progeny, there may be opportunities in Court to have a defective or unexecuted Will admitted to probate despite being denied admission by the County Surrogate.
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Thomas D. Begley, III

About the Author

Thomas D. Begley, III is the co-chair of the Trusts & Estates Group at Capehart Scatchard. He is a Certified Elder Law Attorney (CELA) who earned both his undergraduate and law degrees from Georgetown University, located in Washington, D.C. He concentrates his practice in the areas of estate and tax planning, estate administration, small business representation, elder law, and probate litigation. He is an accomplished author and lecturer who has frequently spoken on behalf of the National Academy of Elder Law Attorneys and the New Jersey Institute for Continuing Legal Education as well as other professional organizations. He has been named a “Super Lawyer” as voted by his peers and facilitated by New Jersey Monthly in the area of Trusts and Estate Litigation on numerous occasions. He has attained the prestigious AV rating by Martindale-Hubbell.

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