## Facts

- Richard Ehrlich, a trusts-and-estates attorney, prepared estate-planning documents for himself while facing serious surgery: a will, a power of attorney, and an advance health care directive, all witnessed the same day.
- After his death, no signed original will was found despite an extensive search; an unsigned copy of a will was located along with the signed power of attorney and signed advance directive from the same execution date.
- The unsigned copy made specific gifts to two relatives with whom the decedent had little recent contact, gave one-quarter of the residuary estate to a friend, and left the bulk of the residue to Jonathan Ehrlich, a favored nephew.
- The decedent told others, including Jonathan, that he had a will and that most of his estate would go to Jonathan.
- A handwritten note indicated the decedent had mailed the original signed will to the named executor, who predeceased the decedent.
- The decedent later ended his relationship with the friend named as a residuary beneficiary and reportedly said he should revise the will to remove her, but there was no evidence of any executed replacement will or codicil.
- Jonathan offered the unsigned copy for probate; other heirs objected, asserting the presumption that a missing will last in the testator’s possession was revoked.

## Issues

1. Whether an unsigned copy of a will may be admitted to probate under N.J.S.A. 3B:3-3 upon clear and convincing evidence that the decedent intended the document to constitute his will.
2. Whether the presumption that a missing original will was destroyed with intent to revoke was rebutted on the record presented.

## Decision

- The Appellate Division affirmed the order admitting the unsigned copy to probate.
- The court held that the proponent established by clear and convincing evidence that the decedent executed an original will and that the offered copy accurately reflected his testamentary plan.
- The court concluded that the presumption of revocation did not bar probate because the evidence supported loss or misplacement of the original rather than intentional destruction.

## Legal Principles

- Under N.J.S.A. 3B:3-3, a writing not executed in compliance with will formalities may be treated as a will if the proponent proves by clear and convincing evidence that the decedent intended the writing to constitute the decedent’s will.
- When a will last known to be in the testator’s possession cannot be found at death, a rebuttable presumption of revocation arises, but it may be overcome by evidence indicating the will was lost, misplaced, or otherwise not destroyed with revocatory intent.
- A court may rely on surrounding circumstances and extrinsic evidence—such as a coordinated execution ceremony, consistent statements of dispositive intent, and explanations for the will’s absence—to establish both execution of an original and the reliability of a copy offered for probate.

## Conclusion

The court upheld probate of an unsigned will copy because clear and convincing evidence showed the decedent executed an original will consistent with the copy and intended its terms to govern at death, and the circumstances rebutted the presumption that the missing original had been revoked.


In re Estate of Ehrlich, 47 A.3d 12 (N.J. Super. Ct. App. Div. 2012)