The Relationship Between Substantial Compliance and Harmless Error
Estates and trusts junkies are watching what the New Jersey Supreme Court will do with the harmless error doctrine in In re Ehrlich, 47 A.3d 12 (2012), a case it has recently agreed to review. The New Jersey appellate court and most legal reporters framed Ehrlich as determining the scope of In re Macool, 3 A.3d 1258 (2010), which held the harmless error rule can only be applied when the decedent actually reviewed the document in question and gave final assent to it. But really the central question in Ehrlich is about the relationship between harmless error and substantial compliance. Because New Jersey is generally a progressive jurisdiction on estates and trusts issues, Ehrlich may reveal much about how intent-oriented courts are inclined to be.
After Ehrlich’s death, a fourteen-page document labeled “Last Will and Testament” was found in his home. Ehrlich was an attorney and the document was typed on legal paper with Ehrlich’s name and law office address printed in the margin of each page. The document was not signed or witnessed, but Ehrlich handwrote on the cover page, “Original mailed to H.W. Van Sciver,” whom Ehrlich had named executor. Ehrlich prepared the document just before he had life-threatening surgery and on the same day he executed a power of attorney and living will. The document left the bulk of Ehrlich’s estate to his nephew, Jonathan. Under intestacy, the estate would be split between Jonathan and another nephew and niece. Ehrlich had not talked to the other nephew and niece for more than 20 years.
You all know where this story is heading. Sciver died in 2005 and the original will could not be located. Nothing suggests that the original was ever returned to Ehrlich. This means the usual rules governing lost wills, which contemplate the will last being in the possession of the testator, cannot neatly resolve the case. To get the bulk of Ehrlich’s estate, Jonathan must convince the New Jersey Supreme Court to allow probate of the document found in Ehrlich’s home. Because the document is neither signed nor witnessed, everything turns on how the Court interprets the harmless error rule, which the New Jersey legislature adopted a few years ago.
If you clicked to read more, you almost certainly know that the harmless error rule allows probate when it is clearly and convincingly established that the decedent intended the document to be a will. The probate judge and a majority of the appellate court agreed that there was plenty of evidence that Ehrlich wrote the document with testamentary intent. The dissent, however, argued that the court could not apply the harmless error rule to a document without either a signature or some form of attestation. In other words, the dissent believed that the harmless error rule does not authorize probate of an entirely unexecuted document.
The dissent would almost certainly be right if it were applying the substantial compliance doctrine and not the harmless error rule. As originally conceived, substantial compliance was supposed to permit probate when evidentiary and other purposes of will formalities have been served, even if execution is defective. But as an actual matter, the substantial compliance rule has morphed into a dual inquiry about testamentary intent and whether the document is close enough to the formal statutory requirements.
New Jersey is partially responsible for the substantial compliance rule’s emphasis on the degree of compliance with will formalities. In In re Ranney, 589 A.2d 1339 (1991), the New Jersey Supreme Court held that when “formal defects occur, proponents should prove by clear and convincing evidence that the will substantially complies with statutory requirements.” Witnesses signed in the wrong place? Close enough for probate, provided there is good evidence of testamentary intent. Only one witness when the statute required two? Probably good enough for probate, again provided there is good evidence of testamentary intent. But no witnesses and no decedent signature? Not nearly good enough for probate because the document is simply too far from what the statutory formalities require.
But substantial compliance and harmless error are different, at least as both are currently understood. We routinely refer to jurisdictions as either “substantial compliance” or “harmless error.” Substantial compliance is about whether the decedent got close enough to the statutory requirements for the document to pass muster. Harmless error is about whether the decedent intended the document—partially executed or not—to be a will.
The Ehrlich dissent focuses on the formal requirements of will execution. Because of statutory requirements, the dissent concludes that an unsigned and unattested document cannot be probated. But New Jersey has been a harmless error jurisdiction since the legislature amended the probate code in 2004. The harmless error rule emphasizes that the single most important consideration in admitting a document for probate is the presence of testamentary intent. By refusing to apply the harmless error rule without a signature or attestation, the dissent wrongly conflates the harmless error rule with the substantial compliance doctrine.
The irony is that, when first formulated, the substantial compliance doctrine was a lot like the current harmless error rule. At the inception of substantial compliance, the central inquiry was supposed to be whether the decedent had manifested testamentary intent. When courts instead asked whether decedents had gotten close enough to the statutory requirements, the harmless error rule—as set forth in the 1990 Uniform Probate Code—emerged as a more intent-based alternative to substantial compliance. If the New Jersey Supreme Court sides with the Erhlich dissent, it means formal statutory requirements can trump testator intent even under the harmless error rule. Harmless error will not be a rule that moves beyond substantial-compliance-as-applied-by-the-courts; instead, harmless error will just be a different articulation of it.
There is, of course, the pesky fact that Ehrlich did not intend the document found in his drawer to be offered for probate; instead, he intended the document that he sent to his executor to be offered for probate. This leaves room for the New Jersey Supreme Court to tackle the important question of how to best define “testamentary intent.” More on that in another post.