Probating an Unsigned Will No Longer Impossible in New Jersey
Published: June 7, 2010 in the NJ Law Journal,
Cite 200 N.J.L.J. 643
By: Christopher DeFilippis
Witman Stadtmauer, P.A.
26 Columbia Turnpike
Florham Park, NJ 07932
Historical Perspective of the New Law
Historically in New Jersey, a testator was required to adhere to specific formalities to validly execute a Will. Those formalities, articulated in N.J.S.A. 3B:3-2, require that a Will shall be in writing, signed by the testator, or by another at the testator’s direction, and signed by two witnesses within a reasonable time after witnessing the testator’s signature or the testator’s acknowledgment of that signature. The historical purpose of these formalities was to indicate the testator’s intent absent undue influence, duress and deceit.
However, New Jersey courts began gradually moving away from “rigid insistence on literal compliance” with Will formalities as this sometimes frustrated the clear objectives of the testator. The Peters, 107 N.J. 263 (1987), and Ranney, 124 N.J. 1 (1991), decisions illustrated this movement. In Peters, the New Jersey Supreme Court acknowledged that there could be instances where it was appropriate for an attesting witness to sign the purported Will after the death of the testator. The Ranney court permitted the probate of a decedent’s Will where the two attesting witnesses signed only the self-proving affidavit and not the attestation clause.
The gradual movement away from strict adherence to testamentary formalities was not unique to New Jersey as courts in states such as Utah, Colorado and New York began to follow the same trend. In 2005, with the movement away from rigid insistence on compliance with Will formalities clear, the New Jersey Legislature adopted verbatim Section 2-503 of the Uniform Probate Code, which has been adopted in full by 16 other states and in part by several others.
The New Jersey Legislature adopted Section 2-503 of the Uniform Probate Code in N.J.S.A. 3B:3-3, which states that documents that are not executed in accordance with N.J.S.A. 3B:3-2 can be treated as valid Wills if the proponent can establish by “clear and convincing evidence” that the decedent intended the document to be 1) decedent’s Will; 2) a partial or complete revocation of the Will; 3) an addition or alteration to the Will; or 4) a partial or complete revival of a formerly revoked Will or portion of the Will.
Application of the New Law
One reason testamentary formalities were adopted was to reduce estate litigation. However, many jurisdictions have found that permitting the probate of testamentary documents that are deficient in the manner in which they have been executed has reduced the amount of estate litigation and allowed the testator’s intent to more often be effectuated. Sky Dancer, 12 P.3d 1231 (2000). This factor coupled with New Jersey’s relatively recent adoption of Section 2- 503 of the Uniform Probate Code has resulted in very few reported cases which interpret N.J.S.A. 3B:3-3. While the clear and convincing standard controls in cases involving documents executed without requisite formalities, decisions in other jurisdictions that have adopted the Uniform Probate Code indicate that where the departure from the formal Will execution is more substantial in nature, courts have generally placed a more substantial burden on the proponent to establish by clear and convincing evidence that the document is a reflection of the testator’s intent. Wilfong, 148 P.3d 465 (2006).
Since this is a developing area of the law, it remains a question as to just how far a document can stray from following N.J.S.A. 3B:3-2 and still be probated in New Jersey. Perhaps the most egregious deficiency when trying to probate a document is the absence of the testator’s signature. Although the burden on the proponent is a difficult one to overcome, it is possible to probate an unsigned Will, as further described below.
Example in Practice
A husband and wife retained our firm to plan their estates. Their combined net worth was approximately $1 million. They discussed their estate planning goals with their attorney and decided to have Wills prepared which provided for a disclaimer trust for the surviving spouse’s benefit to be funded up to the state exemption amount with the remainder passing to the surviving spouse outright at the death of the first spouse. Upon the death of the surviving spouse, the balance in the disclaimer trust would pass to their child free of state or federal estate tax. The drafts of the documents had been reviewed by the clients and the originals had been sent to the clients for signature. However, one spouse became ill and died before having been afforded an opportunity to sign the newly prepared Will.
While it is true that the surviving spouse would inherit the predeceasing spouse’s estate through intestacy and the predeceasing spouse’s estate would not have been taxed as a result of the marital deduction, the surviving spouse’s estate would lose out on the estate tax savings that the disclaimer trust provides. Upon the surviving spouse’s passing, the amount in the disclaimer trust would not be subject to estate tax.
Another option for the surviving spouse would have been to disclaim the predeceasing spouse’s assets enabling the assets to pass to the couple’s only child outright. However, the surviving spouse was retired and not yet 70 years of age, and thus, did not feel comfortable giving up complete control of the $500,000 in the predeceasing spouse’s estate. The disclaimer trust would still allow the surviving spouse to access the principal in the trust during his or her lifetime.
Since the clear and convincing standard is specified by the statute, the success or failure of the petition will largely be based upon the strength of the facts and any backup documentation that can be provided by the attorney or the client. As a result of the detailed and organized estate planning files we maintain, we were able to put together a package of correspondence and draft documents that supported the position that it was our client’s intent to sign the Will.
In addition, our client had notes from all the meetings with the attorney handling the estate planning including notes in the decedent’s handwriting. Our client also produced a very thorough timeline which outlined the steps the couple was taking with their estate planning in conjunction with the decedent’s rapidly worsening physical condition. Because both attorney and client were so thorough and organized, we were able to present a very convincing case that it was the decedent’s intent for this document to be decedent’s Will.
However, equally important to the case we presented was the consent of all the interested parties in the family, which herein, was the decedent’s only child, who signed a certification and appeared before the judge indicating that it was the decedent’s intent to sign this Will.
Two other factors which helped achieve a successful result were the presumptions set forth in the Ericson case, namely that a decedent would use common human impulses in creating a Will and also will seek to expose their estate to as little estate tax as possible. Ericson 74 N.J. 300 (1977).
During the hearing before the judge, we called the surviving spouse as a witness and asked several questions which all played to the intent of the decedent. The judge asked some follow up questions including whether the estate plan had been discussed by the couple outside the presence of the estate planning attorney and whether the couple intended to make any additional changes to the Wills before the decedent spouse passed away. The judge was also curious to know if the surviving spouse proceeded with the execution of the surviving spouse’s Will subsequent to the decedent spouse’s passing. In this case, the surviving spouse had subsequently executed a Will.
Ultimately, the judge was convinced by all of the afore-mentioned factors that the decedent did intend for the unsigned Will to be the decedent’s Last Will and Testament, and but for illness, the decedent would have ultimately signed the document.
The client was extremely pleased, not only about the fact that the child of the marriage would inherit more of their hard earned assets, but also that the predeceasing spouse’s wishes were carried out.
This is still a developing area of the law and this result was reached for the aforementioned case based upon the foregoing facts in a Morris County Courtroom. Each case will present a different set of facts and be heard before judges who may handle these situations somewhat differently. However, the case confirms that it is no longer impossible to probate an unsigned Will in the State of New Jersey.