As estate planning attorneys, we all know that a Will is not valid if it does not meet the jurisdiction’s formalities, right? Well, maybe not, based on this most recent case: In the Matter of the Estate of Richard D Ehrlich, 2012 W.L. 2470122 (June 29, 2012).
There are a few twists and turns in this case, but the straight facts are that Richard Ehrlich, an estate planning attorney, executed his Last Will and Testament nine years before he died. He kept a photocopy of it in his office, and sent the original documents to his executor in 2000. The Will detailed a few bequests, with 25 percent of his estate to be left to a friend, Kathryn, and the balance of the estate to be left to his nephew, Jonathan. Two other relatives, a niece and nephew, were not mentioned in the Will, as Richard had not heard from them for years.
When Richard died, it was discovered his executor had passed on, and no one could find the original Will. What was assumed to be a photocopied version of the original Will was located, and it was on Richard’s law firm stationary but not signed. Richard’s nephew submitted the unsigned copy for probate. The niece and nephew contested the photocopied document. In addition, the question arose of what to do about the bequest left to Kathryn, as several years after the original Will was drafted, Richard indicated he wanted to strike that bequest and leave his entire estate to his nephew.
The law says the Will submitted for probate must be an executed original, and in many Uniform Probate Code (UPC) states, a Will may be properly signed and witnessed, or even a holographic Will. In New Jersey, where this case was heard, their UPC contains the “harmless error” rule. In short, it states a document may be accepted if the proponent can show clearly and convincingly that the document, alteration, or revocation, was the deceased’s intent.
The photocopied original was accepted by the court for probate. The issue was the submitted document was not signed. The court found Richard had given final assent to the document as his Will. The relatives appealed. On appeal, the court concluded the document would be accepted, even though it was not signed, and found clear and convincing proof he intended it as his Last Will and Testament.
Things to consider for estate planning attorneys in UPC jurisdictions:
- The deceased’s family needs to find any kind of writing that may be regarded as a revocation, modification, or Will.
- Consider having your client sign written notes.
- If a document is located that may be regarded as a revocation, a Will, or modification, will it meet the clear and convincing evidence standard?
The take away is to always follow the proper formalities. However, if there is a Will that does not meet the formal requirements, you might get it declared valid anyway, at least in a UPC jurisdiction.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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