In the Matter of Ehrlich, A-5439-10T2; Appellate Division; opinion by Parrillo, P.J.A.D.; dissent by Skillman, J.A.D., retired and temporarily assigned on recall; decided and approved for publication June 29, 2012. Before Judges Parrillo, Alvarez and Skillman. On appeal from the Chancery Division, Probate Part, Burlington County, P-2009-2542. [Sat below: Judge Hogan.] DDS No. 38-2-6827 [30 pp.]

Richard Ehrlich, a trust and estates attorney, died in 2009. His only next of kin were his deceased brother’s children — Todd and Jonathan Ehrlich and Pamela Venuto. He had not had any contact with Todd or Pamela in more than 20 years. He did maintain a relationship with Jonathan.

After an extensive search, Jonathan located a copy of a detailed document titled “Last Will and Testament” in a drawer in decedent’s home that he sought to have admitted to probate. Todd and Pamela filed an objection. The document was typed on traditional legal paper with Richard Ehrlich’s name and law office address printed in the margin of each page. It does not contain the signature of decedent or any witnesses. It does, however, include a notation in decedent’s handwriting at the right-hand corner of the cover page: “Original mailed to H.W. Van Sciver, 5/20/2000.” The document names Harry W. Van Sciver as executor of the purported will and Jonathan as contingent executor. Van Sciver predeceased the decedent and the original of the document was never returned.

The purported will provides a specific bequests to Pamela and Todd. Twenty-five percent of the residuary estate is to pass to a trust for the benefit of Kathryn Harris; 75 percent is to pass to Jonathan.

It is undisputed that the document was prepared by decedent.

Years after drafting these documents, he acknowledged to others that he had a will and wished to delete the bequest to Harris. However, he never made this change as no such document ever surfaced.

The General Equity judge admitted the document to probate, finding that since Ehrlich prepared the document, there can be no doubt that he viewed it, and that his handwritten notation on the first page, effectively showing that the original was mailed to his executor, is clear and convincing evidence of his final assent and that he intended the original document to constitute his last will and testament as required both by N.J.S.A. 3B:3-3 and In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010).

Held: The unexecuted copy of the decedent’s purported will is admitted to probate pursuant to 3B:3-3 because it is undisputed that decedent drafted the document and its proponent has shown, by clear and convincing proof, that the decedent reviewed and assented to it, and that it accurately reflects his final testamentary wishes.

The majority notes that N.J.S.A. 3B:3-2 contains the technical requirements for writings intended as wills. A document that does not comply with 3B:3-2 is nevertheless valid and may be admitted into probate under 3B:3-3 if its proponent establishes by clear and convincing evidence that the decedent intended the document or writing to constitute his will.

Interpreting 3B:3-3, Macool held that a writing need not be signed by the testator to be admitted to probate if the proponent can prove, by clear and convincing evidence, that (1) the decedent actually reviewed the document; and (2) gave his final assent to it.

The majority disagrees with the dissent, discerning no specific requirement in § 3 that the document be signed and acknowledged before a court may move to the next step and decide if there is clear and convincing evidence that the decedent intended it to be his will. It says that because 3B:3-3 is remedial in nature, it should be liberally construed.

The majority acknowledges that, as a general proposition, the greater the departure from § 2′s formal requirements, the more difficult it will be to satisfy § 3′s mandate that the instrument reflect the testator’s final testamentary intent. However, the lack of a signature and attestation does not present an insurmountable obstacle here.

Decedent undeniably prepared and reviewed the challenged document. In disposing of the entire estate and making specific bequests, the purported will contains a level of formality and expresses sufficient testamentary intent. Moreover, as the only living relative with whom decedent had any meaningful relationship, Jonathan was the natural object of decedent’s bounty.

As to whether decedent gave his final assent to the document, the majority says his handwritten notation on the cover page shows an intent that it serve as his will. Moreover, he repeatedly orally confirmed its dispositionary contents to those closest to him in life. The unrefuted proof is that decedent intended Jonathan to be the primary beneficiary of his estate, an objective the purported will effectively accomplishes.

Given these circumstances, the majority is satisfied there is clear and convincing evidence that the document was reviewed and assented to by decedent and accurately reflects his final testamentary wishes. As such, it was properly admitted to probate as his last will and testament.

The majority also finds the court properly exercised its discretion in not imposing sanctions under the frivolous litigation statute. There was no showing that appellants’ objection to probate was filed in bad faith. Given the nature of that document’s departure from § 2′s technical requirements, it was neither unreasonable nor unfair for appellants to hold respondent to his rather exacting statutory burden.

The dissent says that by its plain terms, 3B:3-3 only allows the admission to probate of a defectively executed will, not an unexecuted will.

For appellants/cross-respondents — Ethan J. Ordog (Begley Law Group). For respondent/cross-appellant — Paul R. Melletz (Begelman, Orlow & Melletz).