Law of Wills, 2016A

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supra, 63 Wash.U.L.Q. at 60; Nelson & Starck, supra, 6 Pepperdine L.Rev. at 355. It would be ironic to insist on literal compliance with statutory formalities when that insistence would invalidate a will that is the deliberate and voluntary act of the testator. Such a result would frustrate rather than further the purpose of the formalities. Nelson & Starck, supra, 6 Pepperdine L.Rev. at 353-55. Concerned about inequities resulting from excessive adherence to formalism, the Commissioners on Uniform State Laws proposed the Uniform Probate Code. The goals of the Code were to simplify the execution of wills, Uniform Probate Code, art. 2, pt. 5, General Comment at 46 (1974), and to recognize the intent of the testator in the distribution of his property, id. at § 1-102(b)(2). Consequently, the Commissioners minimized the formalities of execution and diminished “the ceremonial value of attestation.” Langbein, supra, 88 Harv. L. Rev. at 510-11. Responding to similar concerns in 1977, the New Jersey Legislature adopted a variation of the Uniform Probate Code that differed significantly from its pre-Code predecessor. 1977 N.J. Laws, ch. 412, § 1; see In re Estate of Peters, supra, 107 N.J. at 271, 526 A.2d 1005.Thus, N.J.S.A. 3B:3-2, like its identical 1977 counterpart, N.J.S.A. 3B:3-2A-4, does not require that witnesses sign in the presence of the testator and of each other. In re Estate of Peters, supra, 107 N.J. at 273, 526 A.2d 1005. The 1977 amendments also removed the interested-witness provisions, N.J.S.A. 3A:3-2A-7, with the result that a beneficiary who acts as a witness is no longer prevented from taking under a will, N.J.S.A. 3B:3-8. As a result of those amendments, moreover, unwitnessed holographic wills could be admitted to probate. N.J.S.A. 3A:2A-5. Under the current provision, N.J.S.A. 3B:3-3, a holographic will is valid whether or not witnessed, so long as the signature and material provisions of the will are in the handwriting of the testator. N.J.S.A. 3B:3-3. The approval of unwitnessed holographic wills, like the diminution of attestation requirements, reflects a more relaxed attitude toward the execution of wills. Legislative history confirms that N.J.S.A. 3B:3-2 was enacted to free will execution from the ritualism of pre-Code law and to prevent technical defects from invalidating otherwise valid wills. Senate Judiciary Committee Public Hearing on Uniform Probate Code Bills at 20 (comments of Harrison Durand) (reduction of statutory formalities meant to prevent failure of testamentary plans); see In re Estate of Peters, supra, 107 N.J. at 272 n. 2, 526 A.2d 1005(noting that former statute often resulted in wills being refused probate because some formality not followed). Generally, when strict construction would frustrate the purposes of the statute, the spirit of the law should control over its letter. New Jersey Builders, Owners & Manager Ass’n v. Blair, 60 N.J. 330, 338, 288 A.2d 855 (1972). Accordingly, we believe that the Legislature did not intend that a will should be denied probate because the witnesses signed in the wrong place. The execution of a last will and testament, however, remains a solemn event. A careful practitioner will still observe the formalities surrounding the execution of wills. When formal defects occur, proponents should prove by clear and convincing evidence that the will substantially complies with statutory requirements. See Uniform Probate Code, supra, § 2-503; Restatement, supra, § 33.1 comment g. Our adoption of the doctrine of substantial compliance should not be construed as an invitation either to carelessness or chicanery. The purpose of the doctrine is to remove procedural peccadillos as a bar to probate. Furthermore, as previously described, ante at 1342-1343, a subsequently-signed self-proving affidavit serves a unique function in the probate of wills. We are reluctant to permit the signatures on such an affidavit both to validate the execution of the will and to render the will self-proving. Accordingly, if the witnesses, with the intent to attest, sign a self-proving affidavit, but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be adduced to establish 605
substantial compliance with the statute. For that reason, probate in these circumstances should proceed in solemn form. See N.J.S.A. 3B:3-23; R. 4:84-1. Probate in solemn form, which is an added precaution to assure proof of valid execution, may be initiated on an order to show cause, R. 4:84- 1(b), and need not unduly delay probate of a qualified will. IV The record suggests that the proffered instrument is the will of Russell Ranney, that he signed it voluntarily, that Schuster and Stout signed the self-proving affidavit at Russell’s request, and that they witnessed his signature. Furthermore, Betty has certified that Russell executed the will and that she is unaware of the existence of any other will. Before us, however, her attorney questions whether Russell “actually signed” the will. If, after conducting a hearing in solemn form, the trial court is satisfied that the execution of the will substantially complies with the statutory requirements, it may reinstate the judgment of the Surrogate admitting the will to probate. Following the judgment of the Appellate Division, this Court amended the Rules of Civil Procedure pertaining to probate practice. Those amendments resulted in the allocation of the probate jurisdiction of the Chancery Division to the Chancery Division, Probate Part. See R. 4:83. The judgment of the Appellate Division is affirmed, and the matter is remanded to the Chancery Division, Probate Part. 14.3.3 Harmless Error/Dispensing Power The harmless error rule applies to situations when the testator does not attempt to comply with the statutory requirements. This rule is also referred to as the dispensing power because it permits the courts to dispense with the statutory formalities. Under the rule, the court may excuse noncompliance with statutory formalities if the proponent of the will produces clear and convincing evidence that the decedent intended the document to be his or her will. For the rule to apply, the proponents must show that the decedent prepared the document or caused the document to be prepared and the decedent signed the document and intended the document to constitute the decedent’s will. In re Estate of Ehrlich, 47 A.3d 12 (N.J. Super. Ct. App. Div. 2012) PARRILLO, P.J.A.D. Appellants Todd Ehrlich and Pamela Venuto appeal from an April 20, 2011 order of the General Equity Part admitting into probate the proffered Will of Richard D. Ehrlich and from the June 20, 2011 order denying their motion for reconsideration. Respondent Jonathan Ehrlich cross-appeals from the July 6, 2011 order denying his motion for sanctions under the Frivolous Litigation statute, N.J.SA. 2A:15-59.1. We affirm. The material facts are not genuinely in dispute. Richard Ehrlich, a trust and estates attorney who practiced in Burlington County for over fifty years, died on September 21, 2009. His only next of kin were his deceased brother’s children—Todd and Jonathan Ehrlich and Pamela Venuto. The 606
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Law of Wills Browne C. Lewis Leon a
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Notices This is the first edition o
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Table of Contents Law of Wills ....
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Problems and Questions ............
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Welch vs. Wilson, 516 S.E.2d 35 (W.
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Notes and Questions ...............
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Notes, Problems, and Questions ....
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10.3.1 Fraud in the inducement ....
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12.1 Introduction .................
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Matter of Kalouse’s Estate, 282 N
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Preface Both lay persons and buddin
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Part I - The Intestacy System Chapt
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meaning of the Canon, when it becom
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In January 1998, before the husband
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that part of his estate that otherw
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disclose. Ibid. In the context of e
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eveals to Lawyer that he has just e
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meet with Jake Leno and report back
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panel’s finding that his testimon
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witness, because the hearing panel
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incompetent by a court without both
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Whether, under New Hampshire law an
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uildings used in the family busines
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Creating a duty, even under the unf
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Chapter Two: Intestacy System (Basi
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children for purposes of the distri
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Lauren, a widow, had two children,
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nominated himself as the sole perso
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(1) to the issue of the decedent; i
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stirpes,” “classic per stirpes,
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E, will receive her 1/3 share of th
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Scenario Two: Stephen dies intestat
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Thomas A. Fleming was born out of w
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In our view, the 1947 statutes coul
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asked [R.W.] how long has he and hi
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Following the fact finding hearing
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eturned to M.W. She agreed to a psy
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Dr. Dyer testified that in his opin
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U.S. 971, 101 S.Ct. 2049, 68 L.Ed.
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intestacy succession rules. Affirme
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Explanation: Willis estate will be
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Appeal dismissed, with costs to res
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Uniform Probate Code § 2-109 (a) I
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Chapter Three: Intestacy System (Su
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5. In America, there are variations
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On February 6, 1981, Leslie died in
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property to Edith. By such action,
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eversed the separate property deter
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legislative direction to the contra
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V. Virtually every court which has
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Joan last saw Charles in the New Yo
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Helen’s petition came on for a no
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valid, the court shall declare such
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their claim to an interest in the e
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In Estate of Ricci (1962) 201 Cal.A
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which were hers by separate ownersh
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Laikola v. Engineered Concrete, 277
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the party alleging a common-law mar
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3.2.3 Same-Sex Spouse Under the int
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There is no question that Frances
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Bell Joyner (collectively “defend
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2. What was the constructive abando
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on New York Evidence, Section 956,
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each will, Vencie and Melba gave
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days. These provisions constitute a
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Determination of Death 30 (1982), t
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We next address the question of whe
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3.4.3 Dower Ohio Revised Code Ann.
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3.4.4 Fractionalize Forced Share In
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If the decedent and the surviving s
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The effect of the parties’ disagr
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or model act. However, when the leg
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“how the [elective-share] amount
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allowance be deducted twice as a pa
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Thus, as the estate and the trial c
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M. Morrow, another first cousin, wa
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few other states allow the adopted
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II. Constitutionality Child next ar
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“If, for purposes of intestate su
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2. Sylvia R. Fore married George Cl
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Fred Wulf died intestate April 30,
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Jenkins v. Jenkins, 990 So. 2d 807
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Case law in Mississippi is also cle
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Conclusion Based on the foregoing r
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Page was without authority to contr
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Moreover, the purpose of requiring
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probate records of Mrs. Margaret Wi
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Right to inherit from biological pa
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After the natural father in Halterm
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In support of her motion for summar
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This equitable principle of law has
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equitably adoptive parent's brother
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Judgment of the Circuit Court for M
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1983); Wilks v. Langley Adm’r, 45
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transcript shows that the court was
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egardless of age.” An order and j
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parent-child relationship between p
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N.E.2d 820, 822 (Ill. 1994). To det
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of an adopted adult. Accordingly, w
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arred because it is contrary to pub
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construction.” Lang, 35 S.W.3d at
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3. Ellison Sr. could have intended
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occurred.” Id. Therefore, “[t]h
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Acts of 1975, 64th Leg., R.S., ch.
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the natural parents may not inherit
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and seeking his own appointment as
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was open and uncontested and becaus
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170-B:1. The statute already consid
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5.2 Non-Marital Children Most of th
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In applying the Equal Protection Cl
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“An illegitimate child is the leg
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The New York statute, enacted in 18
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during their fathers’ lifetimes,
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Phillips v. Ledford, 590 S.E.2d 280
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(citations omitted) a positive DNA
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Class Discussion Tool LaMeesha had
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The definition of “legitimate”
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We fail to find the necessary State
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Sample State Statutes West's Annota
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legitimate from and through the chi
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Notes and Questions 1. Evaluate the
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I Thomas and Janet are the children
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elationship of an adopted child and
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‘Fifth. If the decedent leaves no
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433, 26 A.L.R.2d 249,cited by appel
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wrote his will. Although it is not
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2460; see id. at p. 2460 [Cal. Law
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foster parent] expressed a desire t
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law, viz., the meaning of the provi
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Chapter Six: Intestacy (Children of
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6.2.1 The Right to Inherit From Fat
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(c) Because the SSA’s interpretat
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The wife presented the judgment of
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Section 1 of the intestacy statute
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See, e.g., L.W.K. v. E.R.C., supra
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more complicated matter. In A.Z. v.
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posthumously conceived child. In an
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distribution statute. After a heari
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(b) Taking against the will of any
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has urged me not to adjudicate this
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going back to at least 1877. The si
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ear his children. Some may question
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of Mr. Finley. The claims were deni
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is left void, superfluous or insign
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(James's issue, in the case of cert
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In order for a post-conceived child
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unless the deceased individual cons
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Questions 1. Which one of the above
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Mitch’s sperm to become pregnant.
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Background Husband and Wife were ma
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any other file, are subject to insp
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husband will not hold them responsi
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K.S. v. G.S., 440 A.2d 64 (N.J. Sup
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In New Jersey, in order to sufficie
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protect the best interests of the c
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Turning to the specific issue befor
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Husband argues implied consent to a
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want to participate in, nor did he
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structure of the statute does not l
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6.5 The Paternity of the Sperm Dono
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parent's constitutional right to pr
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Greenwald, 743 A.2d 977, 979 (Pa.Su
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Custody order affirmed. Support ord
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a large family. Unfortunately, appr
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The analysis and law in support of
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mother under California law.” Joh
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individual's genes. If we are to re
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3. Should genetics be the sole indi
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A bond is created between a gestati
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8. Should there be a presumption th
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Passage of the Act clearly was not
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In deciding the issue of maternity
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6.6.1.4 The Best Interests of the C
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holding of the Court of Appeals tha
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In anticipation of trial, Charles a
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framework for our analysis. 2. The
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contemplate or to control the circu
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Johnson has “discarded both genet
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in any event there is now a lack of
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Instead we affirm on separate and n
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Under California law, a judgment of
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Part II —The Testacy System Chapt
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But the end of future allotment by
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action to encourage consolidation.
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deceased, and others. To review a j
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5. Suppose that Congress required r
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It will not be questioned that marr
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disowned as a member; or if she hav
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7.2.2 Some Restrictions are Reasona
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marriage which imposes only reasona
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National Bank (1961), 87 Ohio Law A
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By exercising her power of appointm
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Max’s beneficiary restriction was
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adoption, in 1969, of the Statute C
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unaffected by the violation of the
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of this estate. In the absence of t
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We conclude, reading Ransdell, Shac
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7. Suppose Dr. Shapira’s will con
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8.3.1 Example Ross had three childr
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Discovery of the 1975 will and the
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Andrews, 125 Nev. 397, 406, 215 P.3
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planning unpredictable. In essence,
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provides: “If the decedent leaves
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child’s interests in the father
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majority of cases hold that under m
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West’s Alaska Statutes Annotated
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The statute also instructs that acq
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While we believe the court did not
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stirpes.’ Further, even if Margar
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This action began with a petition f
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The objectors argue that because Li
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Terry L. Armstrong, John’s brothe
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meaning of “wilfully,” finding
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he killed because an insane person
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5. From a public policy perspective
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Chapter Nine: Testamentary Capacity
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discounted his testimony. Instead,
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Under these circumstances, we agree
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contests the will has the burden of
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maintain the trial court erred in f
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executed. All other evidence concer
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he continued to love Valerie and mi
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the 2001 report, he would have cons
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with testator at rehabilitation hos
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half of $75,000 upon the death of h
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The policy of the law favors testac
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testimony supported the conclusion
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$200 to purchase clothes for hersel
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evidence to be highly probable. In
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slipping the wheatgrass on his sala
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Noblin v. Burgess, 54 So.3d 282 (Mi
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[An appellate court] resolves all c
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presence of Burgess and McDill, as
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physically intimate, and that at so
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matter. We cannot say that the chan
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10.2.2 Undue Influence If the presu
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II. Scope and Standards of Review.
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dominating influence over Clair in
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In re Estate of Rosasco, 31 Misc. 3
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A. There were plenty of instances w
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destroyed free agency, or which, by
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Duress: In the context of contested
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The motion for summary judgment wit
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cause of action against the third p
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intended to induce [Mr.] Schilling
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Does Florida law, statutory or othe
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Class Discussion Tool (Answer this
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(a) Is written, created and stored
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Steve Godfrey (“Deceased”) prep
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Defendant made a properly supported
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who presided at the hearing and hea
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Later in the afternoon Fred and his
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position, that the witnesses are si
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testator’s death.” Kay purporte
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will was properly executed. Id. The
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Viewing this evidence in a light mo
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296, 297, which was a proceeding to
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void. In Fowler v. Stagner, supra,
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extent the subsequent will is incon
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For more than one hundred years, th
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2002. Elizabeth and Kelly are the b
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when they prepared their wills in 2
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execution, or its contents. Rather,
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secreted by some other person with
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As in Jackson and Bowery, it is dem
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Hurricane Katrina, a large number o
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LAW OF WILLS § 21.57 at 446 (rev.
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furniture in the house was left to
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intestate but held that “however
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evocation was based on her mistaken
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2. In 2001, Madison executed a will
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to treat this as a revocation is du
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Section 70 states: “If a person m
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Problems (1) If the testator had no
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It appears from the record that on
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The object of the statute is not to
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does the will contain anything indi
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Chapter Twelve: Non-Attested Wills
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when it appears thereby that the de
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signature, but part of an unfinishe
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emember the North Shore Animal Leag
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handwriting “ ‘is exceedingly d
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12.2.2 In the Testator’s Handwrit
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In Alexander’s Estate v. Hatcher,
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The right to make a will disposing
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I The facts—all of which are undi
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For example, in Estate of Baker, 59
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can come to no other conclusion wit
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Page 580 and 581: I. Facts and Procedural History Thi
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Page 584 and 585: the completed form to his office pr
Page 586 and 587: (a) The Trustee shall pay the entir
Page 588 and 589: Even in those states in which such
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Page 592 and 593: wishes and intentions stated in the
Page 594 and 595: Fifth. It is clear that the judge f
Page 596 and 597: twenty to thirty minutes, during wh
Page 598 and 599: distinctly extraneous document, but
Page 600 and 601: Example: On March 4, 2014, T execut
Page 602 and 603: Explanation: T’s motivation for b
Page 604 and 605: at issue. 2 Page The Law of Wills s
Page 606 and 607: Lawson exerted undue influence on S
Page 608 and 609: embodiment of the Will Contract New
Page 610 and 611: Problems 1. Jason, a seventy year o
Page 612 and 613: to do necessary work about the plac
Page 614 and 615: The terms of the bequest exactly fi
Page 616 and 617: In the first paragraph she directed
Page 618 and 619: ‘The decedent may have thought he
Page 620 and 621: correction? May the law not untie t
Page 622 and 623: testamentary intent?; and (2) Does
Page 624 and 625: Russell’s will gives Betty a life
Page 626 and 627: affiants, with the intent to act as
Page 630 and 631: decedent had not seen or had any co
Page 632 and 633: een executed in compliance with N.J
Page 634 and 635: final assent to the document. Clear
Page 636 and 637: Affirmed. In re Estate of Sky Dance
Page 638 and 639: Although a will was not executed in
Page 640 and 641: Chapter Fifteen: The Stale Will Pro
Page 642 and 643: Example 3: In 2013, Freda left a wi
Page 644 and 645: alike, with the share going to Fran
Page 646 and 647: cousins were dead when testator exe
Page 648 and 649: At the outset, we are not persuaded
Page 650 and 651: The court has followed this rule in
Page 652 and 653: ‘ITEM IV. My real estate located
Page 654 and 655: effect, (sic) when both description
Page 656 and 657: intended a half and half division o
Page 658 and 659: Personal to Chester H. Quinn & Roxy
Page 660 and 661: 2d 199, 214, 238 P.2d 966, 975). Th
Page 662 and 663: 131 P.2d 825; Parsons v. Bristol De
Page 664 and 665: 3. Patent vs. latent ambiguity: Acc
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Page 668 and 669: Early in 2006, Cal Jr. and his wife
Page 670 and 671: 926, 280 P.3d 1110 (2012). Our prim
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decedent”). Thus, although the pr
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antilapse statute, words of survivo
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(1997), the antilapse statute, gove
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generally provided that the propert
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testator left all her property to h
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15.4 Ademption The law considers a
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Sewell also obtained an appraisal o
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contravention of the power of attor
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the Fiduciaries [Sewell and Judkins
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thereby allowing the imposition of
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intentional interference with an in
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the testator’s lifetime, that gif
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him even a small sum with intent to
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
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The doctrine of exoneration has bee
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e paid by the Estate, the debt secu
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16.2.1 Changing the Beneficiary A l
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Accordingly, we affirm the order of
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his consent and without notice to h
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Egelhoff v. Egelhoff ex rel. Breine
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would survive,’ as well as to the
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een adopted by nearly every State-i
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
Page 728 and 729:
and were included in the inventory
Page 730 and 731:
een the property of the daughter up
Page 732 and 733:
Moreover, the settlor may use a dee
Page 734 and 735:
On final submission after evidence
Page 736 and 737:
evidentiary material which has been
Page 738 and 739:
that immediately thereafter the tru
Page 740 and 741:
2. Arthur placed $100,000 worth of
Page 742 and 743:
The co-executors and the trustee do
Page 744 and 745:
not a will construction case, we ar
Page 746 and 747:
presently constituted does not effe
Page 748:
2. Should the settlor be permitted
show all

Law of Wills, 2016A

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