Having seen the delays and costs associated with Wills drafted by the decedent or a third-party, the importance of a properly drafted self-executing Will cannot be stressed enough. But what happens if the only Will left behind is defective or improperly executed? Can the Will still be probated?
Clients often have no alternative but to probate a defective Will, particularly where a defective Will contains important changes. Since the testator is deceased, the Will cannot be corrected and the client must proceed to probate. Defective Wills may be admitted to probate as a “writing intended as a Will”, provided that sufficient evidence supports the Will.
Defective Wills typically require Court proceedings, and are often not accepted as “self-proving Wills” by the Surrogate. This does not mean the Will is automatically invalid. It simply means the Surrogate’s streamlined probate procedures are not available and Court action is necessary. Defective Wills can still be probated as a “writing intended as a Will” through a formal legal proceeding in the Superior Court of New Jersey, Probate Part.
The New Jersey Appellate Division established the following standard for admitting “writings intended as a Will.” The proponent must provide “clear and convincing evidence” that: i.) the testator reviewed the Will, ii.) the Will expresses his or her testamentary intent, and, iii.) the Will was “assented to” by the Testator. In re Estate of Ehrlich, 427 N.J. Super. 64 (App. Div. 2012). If these standards are satisfied, the Superior Court can admit a defective Will to probate.
The Court will review all available evidence when making its determination. The most important factors include statements and acts of the testator. The facts surrounding the drafting and execution of the defective Will are also very important. Other circumstances may be considered, particularly if the Court receives opposition to the probate application from interested parties.
This legal action can overcome a wide variety of defects in a Will, provided sufficient evidence exists. The Ehrlich case admitted an unsigned copy of Mr. Ehrlich’s Will to probate. Other examples include probate of photocopies of lost Wills, Wills containing handwritten changes, and Wills missing witnesses.