Law of Wills, 2016A

een executed in compliance with N.J.S.A. 3B:3-2if the proponent of the
document or writing establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute: (1) the decedent’s
will....
The Legislature enacted N.J.S.A. 3B:3-3 in 2004, as an amendment to the New Jersey Probate Code.
L. 2004, c. 132, § 10, eff. Feb. 27, 2005. It is virtually identical to Section 2-503 of the Uniform
Probate Code (UPC), upon which it was modeled. Senate Judiciary Committee, Statement to Senate Bill
No. 708, enacted as L. 2004, c. 132 (reprinted after N.J.S.A. 3B:1-1). The comments to that Section
by the National Conference of Commissioners on Uniform State Laws express its clear purpose:
“[s]ection 2–503 means to retain the intent-serving benefits of Section 2–502 formality without
inflicting intent-defeating outcomes in cases of harmless error.” Unif. Probate Code, cmt. On § 2-503.
Of particular note, the Commissioners’ comments state that Section 2-503 “is supported by the
Restatement (Third) of Property: Wills and Other Donative Transfers § 3.3 (1999).” Recognizing
that strict compliance with the statutory formalities has led to harsh results in many cases, the
comments to the Restatement explain,
... the purpose of the statutory formalities is to determine whether the decedent adopted the
document as his or her will. Modern authority is moving away from insistence on strict
compliance with statutory formalities, recognizing that the statutory formalities are not ends in
themselves but rather the means of determining whether their underlying purpose has been met. A
will that fails to comply with one or another of the statutory formalities, and hence would be
invalid if held to a standard of strict compliance with the formalities, may constitute just as reliable
an expression of intention as a will executed in strict compliance.
....
The trend toward excusing harmless errors is based on a growing acceptance of the broader
principle that mistake, whether in execution or in expression, should not be allowed to defeat
intention nor to work unjust enrichment.
[Restatement (Third) of Property, § 3.3 cmt. b (1999).]
We recently had occasion to interpret N.J.S.A. 3B:3-3 in a case wherein we held that under New
Jersey’s codification of the “harmless error” doctrine, a writing need not be signed by the testator in
order to be admitted to probate. In re Probate of Will and Codicil of Macool, 416 N.J.Super. 298, 311, 3
A.3d 1258 (App. Div. 2010).
[T]hat for a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of
the writing intended to constitute such a will must 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. Absent either one of these two elements, a trier of fact can only speculate as to
whether the proposed writing accurately reflects the decedent’s final testamentary wishes. [Id. at
310, 3 A.3d 1258].
Thus, N.J.S.A. 3B:3-3, in addressing a form of testamentary document not executed in compliance
with N.J.S.A. 3B:3-2, represents a relaxation of the rules regarding formal execution of Wills so as to
effectuate the intent of the testator. This legislative leeway happens to be consonant with “a court’s
609