Is an Unsigned Copy of a Will Really a Will?

That is the question addressed by the Superior Court of New Jersey, Appellate Division, in the case of In re Estate of Ehrlich. In a divided opinion, the Court determined that under the facts presented, it upheld the trial court ruling to allow an unsigned, unwitnessed copy of a Will to be admitted to probate.

The facts in Ehrlich are simple. Ehrlich was an unmarried, childless estate and trust attorney who had three heirs: his nephews Todd and Jonathan and his niece, Pamela. He had maintained a long term relationship with Jonathan, but had not seen Todd and Pamela for 20 years. If there was no Will, under the laws of intestacy, all three would have inherited equally. After his death, the family searched his house and office, but were unable to find a Will. What they did find was copy of an unsigned, unwitnessed Will. The Will left the majority of his assets to Jonathan, with far lesser amounts to Todd and Pamela. On the copy was his handwritten notation that the original had been delivered to his friend, Harry. Harry had predeceased Ehrlich and the original Will was never returned.

New Jersey courts have long allowed signed copies of Wills to be probated so long as it could be shown that the testator had not destroyed the original Will. But no court in this state has allowed an unsigned copy of a Will to be probated, until now. The Court looked to a recent statute that allows a document to be probated as a Will through the Superior Court if the court finds by clear and convincing proof that the document had been reviewed by the Testator and it can be shown that the Testator had assented to the terms of the document.

In Ehrlich, two of the judges found that the Ehrlich had prepared the Will, and therefore was reviewed by him. The two judges also found that the handwritten notation stating the original had been delivered to his friend was proof that Ehrlich had “assented’ to the terms of the document. The third judge disagreed and stated that he did not believe that the new statute should be read to allow an unsigned document to be admitted to probate. Whether this case will be appealed to the New Jersey Supreme Court or how that Court will interpret the statute remains to be seen.

What does this mean to us? Given the way the Appellate Division interpreted the statute, it may lead to an increase in estate litigation as heirs and beneficiaries attempt to probate documents that previously would not have been considered for probate. It also shows the importance of not just having a Will, but also making sure that your Will is up to date and that the original is kept in a safe and secure location where it can be found when the time comes.

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