In re the Estate Ehrlich

The opinion of the court was delivered by

Appellants Todd Ehrlich and Pamela Venuto appeal from an April 20, 2011 order of the General Equity Part admitting into probate the proffered Will of Richard D. Ehrlich and from the June 20, 2011 order denying their motion for reconsideration. Respondent Jonathan Ehrlich cross-appeals from the July 6, 2011 order denying his motion for sanctions under the Frivolous Litigation statute, N.J.S.A. 2A:15-59.1. We affirm.

The material facts are not genuinely in dispute. Richard Ehrlich, a trust and estates attorney who practiced in Burlington County for over fifty years, died on September 21, 2009. His only next of kin were his deceased brother’s children — Todd and Jonathan Ehrlich and Pamela Venuto. The decedent had not seen or had any contact with Todd or Pamela in over twenty years. He did, however, maintain a relationship with Jonathan, who, he had told his closest friends as late as 2008, was the person to contact if he became ill or died, and to whom he would leave his estate.

*68Jonathan learned of his uncle’s death nearly two months after the passing. An extensive search for a Will followed. As a result, Jonathan located a copy of a purported Will in a drawer near the rear entrance of decedent’s home, which, like his office, was full of clutter and a mess. Thereafter, on December 17, 2009, Jonathan filed a verified complaint seeking to have the document admitted to probate. His siblings, Todd and Pamela, filed an answer, objecting. The court appointed a temporary administrator, Dennis P. Mclnerney, Esquire, who had been previously named as Trustee of decedent’s law practice, and by order of June 23, 2010, directed, among other things, an inspection of decedent’s home. Pursuant to that order, on July 8, 2010, Jonathan, Todd and Pamela, along with counsel and Mclnerney, accessed and viewed the contents of decedent’s home and law office. No other document purporting to be decedent’s Will was ever located.

The document proffered by Jonathan is a copy of a detailed fourteen-page document entitled “Last Will and Testament.” It was typed on traditional legal paper with Richard Ehrlich’s name and law office address printed in the margin of each page. The document does not contain the signature of decedent or any witnesses. It does, however, include, in decedent’s own handwriting, a notation at the right-hand corner of the cover page: “Original mailed to H.W. Van Sciver, 5/20/2000[.]” The document names Harry W. Van Sciver as Executor of the purported Will and Jonathan as contingent Executor. Van Sciver was also named Trustee, along with Jonathan and Michelle Tarter as contingent Trustees. Van Sciver predeceased the decedent and the original of the document was never returned.

In relevant part, the pm-ported Will provides a specific bequest of $50,000 to Pamela and $75,000 to Todd. Twenty-five percent of the residuary estate is to pass to a trust for the benefit of a friend, Kathryn Harris, who is to receive periodic payments therefrom. Seventy-five percent of the residuary estate is to pass to Jonathan.

It is undisputed that the document was prepared by decedent and just before he was to undergo life-threatening surgery. On *69the same day this purported Will was drafted — May 20, 2000— decedent also executed a Power of Attorney and Living Will1, both witnessed by the same individual, who was the Burlington County Surrogate. As with the purported Will, these other documents were typed on traditional legal paper with Richard Ehrlich’s name and law office address printed in the margin of each page.

Years after drafting these documents, decedent acknowledged to others that he had a Will and wished to delete the bequest to his former friend, Kathryn Harris, with whom he apparently had a falling out. Despite his stated intention, decedent never effectuated any change or modification to his Will as no such document ever surfaced, even after the extensive search conducted of his home and law office after his death.

The contested probate matter proceeded on cross-motions for summary judgment following completion of discovery. After hearing argument, the General Equity Judge granted Jonathan’s motion and admitted the copy entitled “Last Will and Testament” of Richard Ehrlich to probate. The court reasoned:

First, since Mr. [Richard] Ehrlich prepared the document, there can be no doubt that he viewed it. Secondly, while he did not formally execute the copy, his hand written notations at the top of the first page, effectively demonstrating that the original was mailed to his executor on the same day that he executed his power of attorney and his health directive is clear and convincing evidence of his “final assent” that he intended the original document to constitute his last will and testament as required both by N.J.S.A. 3B:3-3 and [In re Probate of Will and Codicil of Macool, 416 N.J.Super. 298, 310, 3 A.3d 1258 (App.Div.2010)].

The judge later denied Jonathan’s motion for sanctions for frivolous litigation.

This appeal and cross-appeal follow.

I

At issue is whether the unexecuted copy of a purportedly executed original document sufficiently represents decedent’s final *70testamentary intent to be admitted into probate under N.J.S.A. 3B:3-3. Since, as the parties agree, there is no genuine issue of material fact, the matter was ripe for summary judgment as involving only a question of law, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954), to which we owe the motion court no special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).

N.J.S.A. 3B:3-2 contains the technical requirements for writings intended as wills:

a. Except as provided in subsection b. and in N.J.S.[A.] 3B:3-3, a will shall be:

(1) in wilting;

(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.

b. A will that does not comply with subsection a. is valid as a wilting intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

c. Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.

A document that does not comply with the requirements of N.J.S.A. 3B:3-2a or b is nevertheless valid as a document intended as a Will and may be admitted into probate upon satisfaction of N.J.S.A. 3B:3-3, which provides:

Although a document or wilting added upon a document was not executed in compliance with N.J.S.[A.] 3B:3-2, the document or wilting is treated as if it had been executed in compliance with N.J.S.[A.] 3B:3-2 if the proponent of the document or wilting establishes by clear and convincing evidence that the decedent intended the document or wilting to constitute: (1) the decedent’s will....

The Legislature enacted N.J.S.A. 3B:3-3 in 2004, as an amendment to the New Jersey Probate Code. L. 2004, c. 132, § 10, eff. Feb. 27, 2005. It is virtually identical to Section 2-503 of the Uniform Probate Code (UPC), upon which it was modeled. Senate Judiciary Committee, Statement to Senate Bill No. 708, enact*71ed as L. 2004, c. 132 (reprinted after N.J.S.A. 3B:1-1).2 The comments to that Section by the National Conference of Commissioners on Uniform State Laws express its clear purpose: “[section 2-503 means to retain the intent-serving benefits of Section 2-502 formality without inflicting intent-defeating outcomes in cases of harmless error.” Unif. Probate Code, cmt. on § 2-503. Of particular note, the Commissioners’ comments state that Section 2-503 “is supported by the Restatement (Third) of Property: Wills and Other Donative Transfers § 3.3 (1999).” Recognizing that strict compliance with the statutory formalities has led to harsh results in many cases, the comments to the Restatement explain,

... the purpose of the statutory formalities is to determine whether the decedent adopted the document as his or her will. Modern authority is moving away from insistence on strict compliance with statutory formalities, recognizing that the statutory formalities are not ends in themselves but rather the means of determining whether their underlying purpose has been met. A will that fails to comply with one or another of the statutory formalities, and hence would be invalid if held to a standard of strict compliance with the formalities, may constitute just as reliable an expression of intention as a will executed in strict compliance.

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.

[Restatement (Third) of Property, § 3.3 cmt. b (1999).]

We recently had occasion to interpret N.J.S.A. 3B:3-3 in a case wherein we held that under New Jersey’s codification of the “harmless error” doctrine, a writing need not be signed by the testator in order to be admitted to probate. In re Probate of Will and Codicil of Macool, 416 N.J.Super. 298, 311, 3 A.3d 1258 (App.Div.2010).

*72[T]hat for a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent’s final testamentary wishes.

[Id. at 310, 3 A.3d 1258.]

Thus, N.J.S.A. 3B:3-3, in addressing a form of testamentary document not executed in compliance with N.J.S.A. 3B:3-2, represents a relaxation of the rules regarding formal execution of Wills so as to effectuate the intent of the testator. This legislative leeway happens to be consonant with “a court’s duty in probate matters ... ‘to ascertain and give effect to the probable intention of the testator.’ ” Macool, supra, 416 N.J.Super. at 307, 3 A.3d 1258 (quoting Fidelity Union Trust v. Robert, 36 N.J. 561, 564, 178 A.2d 185 (1962)) (internal citations and quotation marks omitted in original). As such, Section 3 dispenses with the requirement that the proposed document be executed or otherwise signed in some fashion by the testator. Macool, supra, 416 N.J.Super. at 311, 3 A.3d 1258.

Our dissenting colleague, who participated in Macool, retreats from its holding and now discerns a specific requirement in Section 3 that the document be signed and acknowledged before a court may even move to the next step and decide whether there is clear and convincing evidence that the decedent intended the document to be his Will, and therefore excuse any deficiencies therein. We find no basis for such a constrictive construction in the plain language of the provision, which in clear contrast to Section 2, expressly contemplates an unexecuted Will within its scope. Otherwise what is the point of the exception?

Because N.J.S.A. 3B:3-3 is remedial in nature, it should be liberally construed. See Singleton v. Consolidated Freightways Corp., 64 N.J. 357, 362, 316 A.2d 436 (1974). Indeed, if the Legislature intended a signed and acknowledged document as a condition precedent to its validation under Section 3, it would have, we submit, declared so expressly as did, for instance, the Colorado Legislature in enacting its version of UPC § 2-503 and *73N.J.S.A. 3B:3-3.3 The fact that the Legislature chose not to qualify its remedial measure as the dissent suggests is also consistent with the Commissioners’ commentary expressly citing those foreign jurisdictions that excuse non-compliance with the signature requirement, although “reluctant[ly]” so. Unif. Probate Code, cmt. on § 2-503. And like the Commissioners’ discussion, the comments to the Restatement also acknowledge that the absence of a signature is excusable, albeit the “hardest” deficiency to justify as it raises serious, but not insuperable doubt.” Restatement (Third) of Property, § 3.3 cmt. b (1999) (emphasis added).

To be sure, as a general proposition, the greater the departure from Section 2’s formal requirement, the more difficult it will be to satisfy Section 3’s mandate that the instrument reflect the testator’s final testamentary intent. And while the dissent’s concern over the lack of a signature and attestation is obviously understandable, their absence in this instance, as recognized by both sets of commentators and the express wording of Section 3, does not present an insurmountable obstacle.

*74Instead, to overcome the deficiencies in formality, Section 3 places on the proponent of the defective instrument the burden of proving by clear and convincing evidence that the document was in fact reviewed by the testator, expresses his or her testamentary intent, and was thereafter assented to by the testator. In other words, in dispensing with technical conformity, Section 3 imposes evidential standards and safeguards appropriate to satisfy the fundamental mandate that the disputed instrument correctly expresses the testator’s intent.

Here, as noted, decedent undeniably prepared and reviewed the challenged document. In disposing of his entire estate and making specific bequests, the purported Will both contains a level of formality and expresses sufficient testamentary intent. As the motion judge noted, in its form, the document “is clearly a professionally prepared Will and complete in every respect except for a date and its execution.” Moreover, as the only living relative with whom decedent had any meaningful relationship, Jonathan, who is to receive the bulk of his uncle’s estate under the purported Will, was the natural object of decedent’s bounty.

The remaining question then is whether, under the undisputed facts of record, decedent gave his final assent to the document. Clearly, decedent’s handwritten notation on its cover page evidencing that the original was sent to the executor and trastee named in that very document demonstrates an intent that the document serve as its title indicates — the “Last Will and Testament” of Richard Ehrlich. In fact, the very same day he sent the original of his Will to his executor, decedent executed a power of attorney and health care directive, both witnessed by the same individual. As the General Equity judge noted, “[ejven if the original for some reason was not signed by him, through some oversight or negligence his dated notation that he mailed the original to his executor is clearly his written assent of his intention that the document was his Last Will and Testament.”

Lest there be any doubt, in the years following the drafting of this document, and as late as 2008, decedent repeatedly orally *75acknowledged and confirmed the dispositionary contents therein to those closest to him in life. The unrefuted proof is that decedent intended Jonathan to be the primary, if not exclusive, beneficiary of his estate, an objective the purported Will effectively accomplishes. Indeed, the evidence strongly suggests that this remained decedent’s testamentary intent throughout the remainder of his life.

Moreover, decedent acknowledged the existence of the Will to others to whom he expressed an intention to change one or more of the testamentary dispositions therein. As the wife of decedent’s closest friend recounted: “And [Richard] has to change [the Will] because there is another person that he gave, I don’t know how you say it, annuities every month ... in case he passed away, and he wants to take her off the [W]ill. And by that time Richard could barely write or sign, so I’m not surprised he didn’t sign his [W]ill.” Although there is no evidence whatsoever that decedent ever pursued this intention, the very fact that he admitted to such a document is compelling proof not only of its existence but of decedent’s belief that it was valid and of his intention that it serve as his final testamentary disposition.

Given these circumstances, we are satisfied there is clear and convincing evidence that the unexecuted document challenged by appellants was reviewed and assented to by decedent and accurately reflects his final testamentary wishes. As such, it was properly admitted to probate as his Last Will and Testament.

The fact that the document is only a copy of the original sent to decedent’s executor is not fatal to its admissibility to probate. Although not lightly excused, there is no requirement in Section 3 that the document sought to be admitted to probate be an original. Moreover, there is no evidence or challenge presented that the copy of the Will has in any way been altered or forged.

As with the case of admitting a copy of a Last Will to probate where the proof is clear, satisfactory, and convincing to rebut the presumption of the original’s revocation or destruction, In re Davis, 127 N.J.Eq. 55, 57, 11 A.2d 233 (E. & A.1940); In re *76Bryan, 125 N.J.Eq. 471, 473-74, 5 A.2d 774 (E. & A.1939); In re Calefs Will, 109 N.J.Eq. 181, 156 A 475 (Prerog.Ct.1931), affirmed, on opinion below, 111 N.J.Eq. 355, 162 A. 579 (E. & A.1932), cert. denied sub nom., Neely v. Stacy, 288 U.S. 606, 53 S.Ct. 397, 77 L.Ed. 981 (1933), here, as noted, the evidence is compelling as to the testamentary sufficiency of the document, its preparation and reflection of decedent’s intent. As has been stressed, a court’s duty in probate matters is “to ascertain and give effect to the probable intent of the testator.” Fidelity Union Trust, supra, 36 N.J. at 564, 178 A.2d 185 (internal citations and quotation marks omitted). In our view, the challenged document was properly admitted to probate because it meets all the intent-serving benefits of Section 2’s formality and we discern no need to inflict the intent-defeating outcome requested by appellants and advocated by the dissent.

II

That said, we also find the court properly exercised its discretion in not imposing sanctions under the Frivolous Litigation statute, N.J.S.A. 2A:15-59.1(a)(1). See United Hearts, L.L.C. v. Zahabian, 407 N.J.Super. 379, 390, 971 A.2d 434 (App.Div.) (recognizing abuse of discretion as standard for review of an award of sanctions), certif. denied, 200 N.J. 367, 982 A.2d 455 (2009). “An ‘abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.’” Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002)).

The Frivolous Litigation statute provides:

A party who prevails in a civil action, either as a plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

[N.J.S.A. 2A:15-59.1(a)(1).]

*77To award costs to a prevailing party for a frivolous claim, the statute requires a showing that “the nonprevailing party either brought the claim in bad faith for harassment, delay, or malicious injury; or ‘knew, or should have known that the complaint [or] counterclaim ... was without [any reasonable] basis in law or equity....'" Buccinna v. Micheletti, 311 N.J.Super. 557, 562-63, 710 A.2d 1019 (App.Div.1998) (quoting N.J.S.A. 2A:15-59.1(b)(2)).

Rule 1:4-8 also permits an attorney to be sanctioned for asserting frivolous claims on behalf of his or her client. United Hearts, L.L.C., supra, 407 N.J.Super. at 389, 971 A.2d 434. An assertion is deemed frivolous when “ ‘no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.’ ” First Atl. Fed. Credit Union v. Perez, 391 N.J.Super. 419, 432, 918 A.2d 666 (App.Div.2007) (quoting Fagas v. Scott, 251 N.J.Super. 169, 190, 597 A.2d 571 (Law Div.1991)). Where a party has a reasonable and good faith belief in the claims being asserted, reallocation of attorneys’ fees and expenses will not be awarded. Ibid. Moreover, “a pleading will not be considered frivolous for purposes of imposing sanctions under Rule 1:4-8 unless the pleading as a whole is frivolous.” United Hearts, L.L.C., supra, 407 N.J.Super. at 394, 971 A.2d 434. Thus, when some allegations are later proved unfounded, a complaint is not rendered frivolous if it also contains non-frivolous claims. Id. at 390, 971 A.2d 434.

Here, there was no showing that appellants’ objection to probate was filed “in bad faith, solely for the purpose of harassment, delay or malicious injury” or had no “reasonable basis in law or equity.” N.J.S.A. 2A:15-59.1(b)(2). Indeed, appellants’ challenge was soundly based as the disputed document did not satisfy the formalities of N.J.S.A. 3B:3-2. The document was not witnessed, notarized or dated, and was only a copy of a purported original. Consequently, to be admitted to probate, the document had to satisfy N.J.S.A. 3B:3-3, which placed a heavy burden of proof upon the document’s proponent. Given the nature of that document’s departure from Section 2’s technical requirements, it *78was neither unreasonable nor unfair for appellants to hold respondent to his rather exacting statutory burden. As properly noted by the motion judge, there was nothing in the record to suggest appellants’ objection was filed to harass, delay or cause malicious injury. As there was a reasonable basis for appellants’ claims in law and equity, the court properly denied respondent’s motion for sanctions for frivolous litigation.

Affirmed.