Recently I wrote about In re Ehrlich, 47 A.3d 12 (2012), a trusts and estates case pending before the New Jersey Supreme Court that will serve as a bellwether of what can be probated in harmless error jurisdictions. Under the Uniform Probate Code’s harmless error rule, a defective document can be probated if there is clear and convincing evidence that the decedent intended it to be a will.
As I previously explained, the proponent in Ehrlich wants to probate an unsigned and unattested document that otherwise reads like the usual formal will. The decedent had noted in one corner of the document that he mailed “the original” to his executor. I suggested that the dissenting appellate division judge, who wanted to deny probate, was applying a substantial compliance standard instead of the harmless error rule, which New Jersey adopted in 2004.
But another possibility is that the dissent and majority have different understandings of testamentary intent. This would help reconcile Ehrlich with In re Macool, 3 A.3d 1258 (2010), another important harmless error case.
In Macool, the dissenting judge in Ehrlich voted with the majority to hold that probate under the harmless error rule requires proof that the decedent (1) actually reviewed the document and (2) gave final assent to it. The Macool court refused to probate a document that a lawyer had dictated while Macool was in his office; although the lawyer’s secretary had typed up the document, Macool never saw it because she died just an hour after leaving the lawyer’s office. The court explained that in the absence of review and final assent, it could not be certain the document reflected Macool’s final testamentary wishes.
Similarly, the dissenting judge in Ehrlich may not see adequate evidence of testamentary intent. Perhaps from the dissent’s perspective, all we have is an unsigned and unwitnessed document. The other evidence—the handwritten notation; the fact that the decedent drew up the document just before he had life-threatening surgery; and that he executed health care directives on the same day that the document is dated—all of this is simply not enough to convince the judge that Ehrlich gave final assent to the document. In other words, the dissenting judge may not be sufficiently certain about Ehrlich’s testamentary intent.
The dissent in Ehrlich writes that he now believes Macool “gives too expansive an interpretation” to the harmless error rule. Perhaps the dissent fears that Macool opened the barnyard door to the probate of documents that will fall short of what the dissent believes is necessary to establish testamentary intent. In particular, the dissent appears reluctant to find testamentary intent without a decedent signature.
I, for one, have never been concerned about Macool throwing open the barnyard door. In fact, I have argued that Macool partially closed it. I’ve written more about that here.