Harmless Error (The Estates and Trusts Kind)
As I’ve previously discussed on this site, Uniform Probate Code 2-503 allows courts to probate documents that were improperly executed upon clear and convincing evidence that the decedent intended the document to be a will. New Jersey, which codified this harmless error rule several years ago, finally has a published appellate decision interpreting it. The case, In re Will of Macool (2010 WL 3608686 (N.J. Super. A.D.)) is notable because it may provide a counterweight to In Re Kuralt, in which a Montana court arguably extended 2-503 to probate a document that indicated how the decedent wanted to dispose of his property but was not intended to be a will.
In Macool, Louise wrote a will in 1995 and codicil in 2007. Her husband, Elmer, was the primary beneficiary of these documents and his children (Louise’s stepchildren) were the contingent beneficiaries. In 2008, Elmer died and Louise went to her lawyer to revise her estate plan. The crux of her new plan was to reduce what her stepchildren were taking and to make gifts to her niece and godchild. Louise gave her lawyer handwritten notes that summarized her new plan; these notes were a bit cryptic and it’s hard to imagine that the lawyer would have known what to do with them in the absence of oral clarification from Louise. The lawyer dictated a complete document while Louise was in his office and a secretary typed up the dictation that same afternoon or the next morning. Louise was supposed to come back at a later date to review the document, but she died about an hour after leaving the lawyer’s office.
The trial court found, and the appellate court agreed, that Louise intended to alter her testamentary plan to include her niece and godchild. In refusing to probate the document, however, the court distinguished between evidence “showing decedent’s general disposition to alter her testamentary plans” and evidence establishing that the decedent “intended the draft will prepared by [the attorney] to constitute her binding and final will.” The court held that for the harmless error rule to apply, the proponent of a writing must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his final assent to it.”
What would happen if we applied Macool to the facts of Kuralt? I suspect that only E & T junkies read past the first 10 words of this post, but I’ll quickly summarize the case nonetheless: In Kuralt, the ailing testator wrote a letter to his mistress stating that he would have a “lawyer visit the hospital to be sure you inherit the rest of the place in MT.” The court probated the letter as a holographic codicil to Kuralt’s formal will. One very fair reading of Kuralt is that the court probated the document not because Kuralt actually believed that he was writing a codicil, but instead because the court had clear and convincing evidence that Kuralt wanted his mistress to take the Montana property. If this reading is correct, the error held harmless in Kuralt is the decedent’s failure to write a document that even he would describe as a will.
I suspect a court guided by Macool would refuse to probate Kuralt’s letter. It is true that Kuralt’s letter states his intent quite clearly and that Kuralt was undoubtedly aware of what the letter said because he had both written and signed it. It’s also true that we can’t say the same thing about Louise. The meaning of her handwritten notes is hard to decipher and she never saw the document that was offered for probate. Indeed, the Macool court states that Louise never had an opportunity to review what the attorney wrote or to correct any mistakes. Critically, however, Macool emphasizes that there is a difference between a desire to dispose of property in a particular way and writing a “final and binding will.” Kuralt had the desire, but not a document that was intended to be a final and binding will. (For this same reason, the Macool court likely would have also refused to probate Louise’s handwritten notes, which read like a draft or a guide and not a final document.)
Whether Macool is positive development in the line of cases construing 2-503 depends, of course, on your view of how to best further decedent intent. On the one hand, we know that on the day of Louise’s death she wanted to favor her niece and godchild and the refusal of probate means these individuals take nothing. On the other hand, Louise never executed or attempted to execute a document that she thought would be admitted for probate. Exactly how forgiving should 2-503 be?