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In re Estate of Ehrlich - NJ Appellate Division Again Holds Unexecuted Will May Be Probated

In a 2-1 decision, the New Jersey Appellate Division holds that an unexecuted will may be probated under certain circumstances.

In, In re Estate of Ehrlich, A-5439-10, Judges Parrillo and Alvarez upheld probate of the unsigned will (authored by an trust and estates drafting attorney, no less) based on N.J.S.A. 3B:3-3 which permits a will to probate even if that will does not satisfy the formal statutory criteria. To be admitted to probate, the proponent of the will must establish by clear and convincing evidence that the deceased intended it as his or her will.

In so holding, the Court relied on, In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010). There, the Court interpreted N.J.S.A. 3B:3-3 as codifying a "harmless error" doctrine for wills, although notably, the Court did not permit probate of what it termed a "draft" as the putative testator passed before she was able to review the document.

Interestingly, Judge Skillman, dissenting in Ehrlich, agreed with the Macool decision.  Nonetheless, Judge Skillman's dissent indicates that Macool was "too expansive"  in that N.J.S.A. 3B:3-3 "only allows the admission to probate of a defectively executed will, not an unexecuted will."

Due to the split, the opponents to probate have an appeal as of right.

The full decision after the jump...