(The following excerpt is a portion of a brief prepared by my Law Firm in support of a successful application we filed in Court seeking an Order admitting a letter to probate as the decedent’s Last Will and Testament. The letter was handwritten by the decedent and altered with extensive cross-outs and additions,)
The technical requirements for the admission of a traditional will to probate are set forth in N.J.S.A. 3B:3-2, which provides as follows:
(a) Except as provided in subsection b. and in N.J.S. 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 … or the testator’s acknowledgment of that signature or acknowledgement 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.
Although it has adopted these technical requirements for the admission of a will, such as mandating the presence of witnesses and a notary, New Jersey has chosen to disregard the statutory requirements of N.J.S.A. 3B:3-2 when a proffered document clearly reflects the testator’s intent. Thus, pursuant to N.J.S.A. 3B:3-3,
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… the decedent’s will. (Emphasis Added)
Our courts have recognized that this “substantial compliance” doctrine is a functional rule designed to cure the inequity caused by the “harsh and relentless formalism” of the law of wills. In re Will of Ranney, 124 N.J. 1, 11 (1991). Recognizing that rigid insistence on the literal formalities in the execution of wills often frustrates the very purposes for which those formalities were created in the first place, the Ranney Court reflected,
[c]ompliance with statutory formalities is important not because of the inherent value that those formalities possess, but because of the purpose they serve. 124 N.J. at 12.
In In the Matter of the Estate of Catherine R. Hoch, Docket No. A-0758-10T2, A-4881-10T2, A-5109-10T2, 2012 N.J. Super. Unpub. LEXIS 898 (App. Div. Apr. 23, 2012) the Appellate Division affirmed the probate court’s judgment admitting into probate the decedent’s will, as altered with cross-outs and additions. The interlineations (cross-outs) and alterations were extensive and, in part, changed and voided certain specific and residuary bequests. The judge had concluded that the will, as altered, should be admitted into probate; that the cross-outs represented “a revocation of only those words physically affected by them;” and the “handwritten additions to the [W]ill [represented] … valid alterations to the [W]ill.” The chancery judge reasoned that,
The pattern of the interlineations demonstrates an intent that only certain portions of the document in its original form be cancelled… [C]are was taken to strike out specific portions of the [W]ill, but to leave others untouched and plainly legible. The clear impression given by the markings … is that decedent intended that certain portions remain effective. Also of note is the fact that none of the signatures are affected by the cross-outs.
In affirming the General Equity decision, the Appellate Division found that “the fact that the handwritten additions and excisions were not executed in compliance with N.J.S.A. 3B:3-2 is not fatal to admitting the document into probate if it otherwise complies with N.J.S.A. 3B:3-3.
Similarly, in In the Matter of the Estate of Randall, Docket No. ESX-CP-0199-10, 2011 N.J. Super. Unpub. LEXIS 808 (Ch. Div. Feb. 1, 2011), the decedent’s son attempted to admit pages 3 and 4 of a photocopy of an “informational” letter written by the decedent. The decedent had retained a photocopy of these pages for many years, had subsequently crossed out portions of the letter, marked them as “void,” and had hand-written marginal notes in other portions. The court found that the photocopied pages 3 and 4 of the initial letter “lacked testamentary intent as originally written.” However, it admitted the photocopied pages of the letter containing the handwritten annotations, finding that “the language of the notation, as brief as it is, expresses sufficient testamentary intent when viewed in the context of the body of the letter, and its maintenance in a safe place for so many years.”
The breadth of our courts’ unyielding commitment to honoring testamentary intent over rigid formalities has been acknowledged by our Appellate Division in recent years. In In re Macool, 416 N.J. Super. 298, 303 (App. Div. 2010), which was the first published Appellate Division decision construing N.J.S.A. 3B:3-3, the court signaled a willingness to admit even an unsigned will to probate when it “reject[ed a statutory reading] that construes N.J.S.A. 3B:3-3 as requiring that the writing offered as a will under the statute bear in some form the signature of the testator as a prerequisite to its admission to probate” (although the unique facts presented there ultimately demonstrated that the will in issue was merely a “work in progress”).
As the Macool court astutely reasoned (and the Ehrlich majority later echoed), N.J.S.A. 3B:3-2 sets forth the formal requirements for two types of wills: the traditional and the “holographic” will, each of which must be signed by the testator; it follows that relaxed requirements of N.J.S.A. 3B:3-3 as applied to the holographic will would serve no purpose if it did not dispense with the signature requirement. Macool, 426 N.J. Super. at 312; Ehrlich, 427 N.J. Super. at 72. See also In re Ehrlich, supra, 427 N.J. Super. 64 (App. Div. 2012) (affirming admission to probate of an unsigned copy of a will).
The facts of the instant case demonstrate clearly and convincingly that the handwritten letter being offered by the plaintiff should be admitted to probate as the Last Will and Testament of the decedent. The handwritten document meets the requirements of N.J.S.A. 3B:3-2. Even assuming, arguendo, that it did not, the document was intended by the decedent to be a valid will, and it constitutes a valid will pursuant to N.J.S.A. 3B:3-3. Not only does the document itself meet the strict statutory requirements of N.J.S.A. 3B:3-2, but the document itself provides “compelling proof … of decedent’s belief that it was valid and of [the decedent’s] intention that it serve as [her] final testamentary disposition.” Ehrlich, 427 N.J. Super. at 75.
Based upon the foregoing, plaintiff asks the Court to admit the handwritten letter to probate as the Last Will and Testament of the decedent.
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