Is an Unsigned Will a Harmless Error? Yes, Says New Jersey and Michigan!


Are unsigned wills admitted to probate trending? Although this question may seem contrary to the basic fundamentals of estate planning, for estate planners in particular, downright ridiculous, unsigned wills may be an issue that states reconsider over the next few years.

The trend towards admitting an unsigned will to probate as a “harmless error” is picking up steam in states that have adopted the Uniform Probate Code (UPC).  Several states adopted the UPC to establish the required formalities for a validly executed will. One of those requirements is that a will must be “signed by the testator.” However, the UPC allows the probate court to excuse a “harmless error” in complying with the formal requirements for executing a will. Both Michigan and New Jersey have adopted the UPC and have interpreted the provisions such that an unsigned will can be excused as “harmless error,” and, thus, permit an unsigned will to be admitted to probate.

In re Probate of Will & Codicil of Macool , was the genesis of this trend. In Macool, the Superior Court of New Jersey, Appellate Division, agreed with the lower court’s conclusion that the proponent of the unsigned will failed to establish by clear and convincing evidence that the decedent intended the particular draft will to constitute her will. However, the court also concluded that a writing offered under New Jersey’s “harmless error” rule N.J. Rev. Stat. §3B:3-3 “need not be signed by the testator in order to be admitted to probate.”

In In re Estate of Ehrlich, citing its earlier holding in Maccol, the Superior Court of New Jersey, Appellate Division, affirmed the lower court’s admission of an unsigned copy of the decedent’s will to probate as a writing intended as a will under N.J. Rev. Stat. §3B:3-3. The court also noted that 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.” And most recently, in In re Estate of Anton, citing Macool and Ehrlich, the Superior Court of New Jersey, Chancery Division, Bergen County, admitted an unsigned will to probate.

In In re Estate of Attia v. Hassan, the Michigan Court of Appeals, citing Macool, concluded that Mich. Comp. Laws §700.2503 permitted the probate court to admit a will without a signature to probate if the document’s proponent established, by clear and convincing evidence, that the decedent intended such document to constitute his or her will.

Even though it is now possible to probate an unsigned will in Michigan and New Jersey under the “harmless error” doctrine, the burden on the proponent of an unsigned will is a difficult one to overcome. The proponent of the document in question must establish by clear and convincing evidence that the decedent intended the document to be a will. It’s unclear whether Michigan and New Jersey will be outliers when it comes to unsigned wills being admitted to probate or whether other states will follow suit. Although it is not recommended to have your clients sidestep the formal requirements for executing their estate planning documents, it’s important that practitioners know that unsigned wills being admitted to probate are trending.   

 

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