New Jersey’s Supreme Court is set to decide whether an unsigned copy of a purportedly executed will can be admitted to probate when the original document cannot be found.
In In re Estate of Richard Ehrlich, A-43-12, a Burlington trusts and estates lawyer left behind a probate battle over his own assets. When he died at age 74 in 2009, a 14-page "Last Will and Testament" was found in a drawer in his home, which an appeals court described as "full of clutter and a mess," like his office.
The purported will, dated May 20, 2000, was on traditional legal paper and had Erhlich’s name and law office address printed in the margins but was not signed by him or witnessed. No original of the will was found among his possessions. A handwritten note indicated the original had been mailed to his friend, Harry Van Sciver, a local banker named as executor, who unfortunately had died in July 2005.
Ehrlich had prepared the unsigned will right before life-threatening surgery in 2000, together with a power of attorney and health care proxy that had the same paper and date but were witnessed by the Burlington County surrogate.
The unsigned will left $75,000 to nephew Todd Ehrlich, $25,000 to niece Pamela Venuto, and split the residuary, with 25 percent going into a lifetime trust for Kathryn Harris, a friend, and 75 percent to Jonathan Ehrlich, another nephew, described by the court as "the only living relative with whom [Ehrlich] had any meaningful relationship."
Todd and Pamela had not been in touch with their uncle for more than 20 years. Ehrlich had told people he would leave his property to Jonathan, also named contingent executor.
Burlington County General Equity Judge Michael Hogan granted Jonathan’s request to probate the unsigned will over the objections of Todd and Pamela.
A divided Appellate Division panel affirmed, based on a 2004 law that allows probate for wills that do not meet the formal criteria — a writing signed by the executor and two witnesses — so long as there exists clear and convincing evidence of the testator’s intent.
Judges Anthony Parrillo and Carmen Alvarez found Jonathan met that standard because Ehrlich clearly prepared the document, which expressed "sufficient testamentary intent" and was "a professionally prepared will and complete in every respect except for a date and its execution."
In addition, Jonathan, who got the bulk of the estate, was the natural object of Ehrlich’s bounty, and the handwritten note and Ehrlich’s comments about Jonathan indicated Ehrlich’s assent to the terms of the unsigned will.
The panel also relied on In re Probate of Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010), which interpreted the will statute as codifying a "harmless error" doctrine that would allow an unsigned will to be probated.
Judge Stephen Skillman, the dissenter in Ehrlich, was also on the Macool panel, but he repudiated his earlier stance, stating that "upon further reflection," Macool was "too expansive" in that it "seems to indicate" in dictum that an unsigned draft will can be probated if the putative testator gave "final assent" to it. His view in Ehrlich was that the law "only allows the admission to probate of a defectively executed will, not an unexecuted will."
Ethan Ordog of the Begley Law Group in Moorestown, who represents Todd and Venuto, says the estate had an estimated value of $1.5 million to $1.8 million but will be worth about $1 million after legal fees, taxes and the settlement of a malpractice case in which Ehrlich’s and Van Sciver’s estates were sued by a third estate.
He notes that the Supreme Court did not grant Jonathan’s request to review a fee award to his clients.
Jonathan’s attorney, Ronald Colicchio of Saul Ewing in Princeton, declines comment, as does Dennis McInerney, a Moorestown lawyer appointed the administrator of Ehrlich’s estate and trustee of his law practice.
Self-Representation Under Predator Act
Also headed for review by the state Supreme Court is the question of whether there is a constitutional right to self-representation at a civil commitment hearing under the Sexually Violent Predator Act.
Last June, the Appellate Division held that a lower court did not violate the Sixth Amendment and due process rights of "D.Y." by denying his motion to represent himself.
D.Y. was sentenced in 1994 to an 18-year prison term for repeated sexual assaults against a young boy over a three-year period.
In 2008, at the end of his sentence, the state sought to have him civilly committed, under the statute to the Special Treatment Unit of the Adult Diagnostic and Treatment Center in Avenel.
At the start of the commitment hearing, D.Y. told the court he wanted to represent himself but he was not allowed to do so.
The hearing went forward with an appointed attorney.
Retired Superior Court Judge Philip Freedman, on recall and designated to hear cases under the statute, ordered D.Y. committed in 2009, based on psychiatric evidence of pedophilia and personality disorder, with a "highly likely" risk of recidivism.
Appellate Division Judges Anthony Parrillo, Jane Grall and Carmen Alvarez affirmed.
"The right to counsel is a right, not a requirement," says Assistant Deputy Public Defender Lewis Sengstacke, who represented D.Y. below.
He says a provision of the statute requiring counsel during the commitment proceedings is unconstitutional as applied to D.Y. because it could have been satisfied by appointing standby counsel.
The Attorney General’s Office declines comment through spokesman Lee Moore.