Draft Cannot be Probated Under Harmless Error Rule

A client decided to change her will. She met with her lawyer, gave him handwritten notes of her intended dispositions, and he produced a draft. The client left the office without seeing the draft and died within the hour. The draft was offered for probate under a New Jersey statute identical to UPC § 2-503, the harmless error rule.

In affirming denial of probate, the New Jersey intermediate appellate court held that to admit a document to probate under the harmless error rule, the proponent must show by clear and convincing evidence that the decedent actually reviewed the document and thereafter “gave his or her final assent to it.” The court expressly rejected the lower court’s statement that the document must be signed by the decedent. In re Probate of Will and Codicil of Macool, 3 A.3d 1258 (2010).

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for bringing this to my attention.