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.” Read More