Most persons have a basic understanding of what it takes to make a valid will – a written document, signed by the testator, in the presence of two persons, who sign as witnesses, which reflects the person’s intention to give property at death. All of that is true, but it’s also true that in 2005 New Jersey adopted a statute that extended the State’s “probable intention” doctrine by treating a document as being in compliance with statutory requirements for execution of a will even if all of those formalities – including the failure to sign the will – were not followed. This change in the law culminated recently in a case where a New Jersey appellate court allowed an unsigned document written in the blood of the decedent to be admitted to probate. The case is a particularly interesting example of the efforts of the courts to elevate the fulfillment of a person’s intentions over compliance with legal technicalities. See In the Matter of the Will of E. Warren Bradway,Appellate Division Docket No. A-4535-16T3 (June 25, 2018) (unpublished).
The dispute over the estate of E. Warren Bradway arose between competing documents that purported to dispose of his property at his death. On June 28, 2001, Bradway, then a Pennsylvania resident, signed a will naming his recognized life partner, Marc Coleman, as primary beneficiary and executor. In 2004, Bradway and Coleman ended their relationship, and in September 2004, Bradway began a committed relationship with Kirston Baylock.
On January 11, 2006 Coleman filed a certified life partner termination statement with the State of Pennsylvania, officially terminating the relationship with Bradway. On that same day, Bradway wrote out – in his own handwriting using his own blood – a one-page codicil, or amendment, to the 2001 will, and named Baylock as his primary beneficiary and executor.1 Bradway moved out of his home in Philadelphia in 2011, and died unexpectedly in April 2016.
At trial, Baylock moved for a directed verdict in his favor after presenting a DNA expert who was able to match the blood on the codicil with Bradway’s DNA, and a handwriting expert who determined the handwriting on the codicil was Bradway’s handwriting. Coleman opposed the motion, arguing that he should be permitted to present two witnesses who would testify that there was no signature on the codicil at the time of Bradway’s death, and that Baylock may have added the signature to the document after his death.
Despite Coleman’s attempts to show that Baylock had committed a fraud by adding Bradway’s signature, the trial court ruled in Baylock’s favor. In so ruling, it relied on N.J.S.A. 3B:3-3 (Writings intended as wills), which provides that a document or writing not executed in compliance with the requirements for signing a will or codicil under law will be treated as meeting the legal requirements if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document or writing to be the decedent’s will or an alteration of the will.
The current version of N.J.S.A. 3B:3-3 was enacted into law in New Jersey in 2005 as part of the State’s adoption of the Uniform Probate Code. Prior to the change, New Jersey permitted holographic wills (wills where the signature and material provisions were in the testator’s handwriting), but there was no provision relaxing the other requirements for will executions. In contrast, New Jersey’s probable intent doctrine had been recognized by the state’s probate courts to resolve other issues long before the addition of revised N.J.S.A. 3B:3-3. Fid. Union Tr. v. Robert, 36 N.J. 561, 564 (1962) (in a probate matter the court’s role was “to ascertain and give effect to the probable intention of the testator”).
The Bradway case was not the first instance of New Jersey courts construing N.J.S.A. 3B:3-3, and not the first instance where the facts were somewhat unusual. In In Re Probate Of Will And Codicil Of Macool, 416 N.J. Super. 298 (App. Div. 2010), the Appellate Division interpreted N.J.S.A. 3B:3-3 as requiring the proponent of the probate of the writing to “prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.” Id. at 310.
In Macool, the decedent, Louise Macool, met with an attorney on May 21, 2008 to make a change in her will, one month after the death of her husband of 40 years. During her discussions with the attorney, she gave him a handwritten note indicating the changes she wanted, and in her presence the attorney dictated the entire will to be prepared by his secretary. Louise then left the attorney’s office with the intention of having lunch nearby, and the attorney expected her to return to his office and review a draft will. However, Louise died about one hour after leaving the attorney’s office without having the opportunity to review the draft will. The court noted that while the draft substantially reflected Louise’s handwritten notes, there were also a couple discrepancies and ambiguities. Based on N.J.S.A. 3B:3-3 and the holding adopted in the case, the court found that it could not admit the draft to probate because Louise had not reviewed the draft will nor given her assent to it.
In Estate Of Ehrlich, 427 N.J. Super. 64 (App. Div. 2012), the court admitted an unsigned will to probate based on the holding of Macool. Richard Ehrlich was a trusts and estates attorney who practiced for over 50 years until his death in September 2009. After his death, his nephew, Jonathan, located a copy of an unsigned document that purported to be Ehrlich’s will. The 14-page document was entitled “last will and testament,” and was typed on traditional legal paper with Ehrlich’s name and law office address printed in the margin of each page. Although the document was neither signed nor witnessed, it did contain, in Ehrlich’s own handwriting, a notation at the right corner of the cover page “original mailed to H.W. Van Sciver, 5/20/2000,” a date just before Ehrlich was to undergo life-threatening surgery. Harry Van Sciver was named as Ehrlich’s executor, but he died before Ehrlich and the original of the document was never found.
In directing that the unsigned document be admitted to probate, the court found that Ehrlich had undeniably prepared and reviewed the document, and the document contained a sufficient indication of testamentary intent. As for Ehrlich giving his assent to the document, the court found that the handwritten notation on the cover page indicating that the original was sent to the person named in the document as executor demonstrated that the document serve as the title indicated – as the decedent’s will.
Attempts to probate unsigned documents have been made on other occasions. In In re Estate of Vendola, Appellate Division Docket No. A-0304-13T2 (September 4, 2014) (unpublished), the Appellate Division affirmed the trial court’s determination that an unsigned document should not be admitted to probate where, at the decedent’s request, an attorney prepared a will for her, they scheduled an appointment to review and sign the draft will, but the decedent was hospitalized before the meeting and died 11 days later without having seen, read or signed the will. In In re Estate of Anton, Bergen County Chancery Division Docket No. BER-P-335-15 (October 6, 2015) (unpublished), an unopposed matter, the trial court admitted an unsigned document to probate where the attorney testified he had sent the document to the decedent prior to his death, and the decedent’s son-in-law testified that in his presence the decedent reviewed the draft document and without reservation approved of its contents as his final expression of testamentary intent. In In re Trust of London, Appellate Division Docket No. A-4693-14T4, A-4746-14T4 (September 6, 2017) (unpublished), the court refused to admit an unsigned document to probate on the grounds that the decedent had not given his final assent to the document, notwithstanding that the scrivener had an “initial sit down” with the decedent for review of the document but never received the decedent’s final approval, and the decedent’s financial advisor “went over” specific provisions of the document with the decedent but that the decedent wanted an in-person meeting for further review.
These cases demonstrate the commendable efforts of New Jersey courts to carry out a person’s clearly-stated intentions to transfer property at death, even in the face of a failure to comply with statutory formalities due to happenstance or unexpected illness or death. While it is refreshing to know that our courts appear to be issuing rulings that are sensible and practical, it is best not to rely on these decisions but to give due time and attention to recording one’s final wishes on disposition of property through properly-planned and signed wills and trusts.
1The opinion does not explain what type of writing instrument Bradway used in preparing the codicil.