Legal Blog

The Weekly Scenario from Steve Shane – 7.23.12

Question:  Decedent passed away and no one has been able to locate the original Will nor a copy of the signed Will.  Can an unsigned copy of the Will be accepted into probate? Answer:  Believe it or not, in some states that have adopted something referred to as the Uniform Probate Code, it may now be possible to have an unsigned copy of a decedent’s Will admitted to probate. The rule, often referred to as the “harmless error” rule truly relaxes the requirement that there be an original Will admitted to probate (no harm no foul I guess?).  In one case, under the harmless error rule, a New Jersey court, in a recent decision, allowed the admission of an unsigned Will to be accepted into probate.  Under the New Jersey version of the law, a writing “intended as a decedent’s Will” can be accepted where the proponent can show by ‘clear and convincing evidence’ that the document was intended as the Will.  I can’t go through the case here, but in the case the document accepted for probate was an unsigned photocopy of a Will that had presumably been lost.  The court found that the supporting evidence provided the clear and convincing proof that the decedent intended the document to be decedent’s Will and that, based upon the testimony, client had reviewed the document and gave his final “assent” to it as his Will. Comment:  To me this is a strange result (keep in mind this is not Maryland as Maryland has not adopted the UPC) and presents a major relaxation of the Will formality rules.  But even in these UPC jurisdictions, I wouldn’t hang my hat on meeting the higher proof standard of ‘clear and convincing’.  And bringing a proceeding to court could be expensive in any case and may not be successful.  On the other hand, it could make things easier for a testator where unprofessionally drawn changes to a Will could be honored. In sum, I think the decision really muddies the waters.   If an unsigned copy of a Will can be accepted for probate, it really puts the pressure on the client to destroy all copies, along with the original.  And to even make it more problematic, what about electronically saved copies? Will the ultimate result be a boom in Legal Zoom… or just room for estate litigation? Steven E. Shane Principal Offit│Kurman Attorneys At Law 301.575.0313 Washington 443.738.1513 Baltimore 410.218.9339 Mobile 301.575.0335 Facsimile Please note the above material discussed is intended to provide only general information. Do not, under any circumstances, solely rely on this information as legal advice. Legal matters are often complicated. For assistance with your specific legal problem or inquiry please contact me directly.