Can an unsigned document be admitted into probate?

A written document does not need to be signed by a testator (person writing a will) to admit the document into probate in New Jersey. Probate is the formal legal process to establish the validity of a decedent’s will.

Procedurally, a person desiring to admit a writing to probate must demonstrate by clear and convincing evidence that the decedent actually reviewed the document in question AND that the decedent assented to the substance of the document.

In a recent New Jersey court case, an heir challenged the validity of a will by asserting that the written document in question constituted the basis for a subsequent will that the decedent intended–but was unable to draft.

The court held that under New Jersey law the writing was sufficient to constitute a will because the substance of the writing demonstrated that the decedent desired to provide precise instructions for decedent’s estate.  This included burial instructions, appointment of an executor, and liquidation/distribution of decedent’s assets.

Further the court held that under the harmless error doctrine the writing need not be signed to be admitted to probate under N.J.S.A. 3B:3-3.  Additionally, the fact that the decedent signed the will at the beginning will not invalidate the will as long as the proponent of the will establishes by clear and convincing evidence that the decedent intended the writing to represent decedent’s signature.

The clear and convincing standard should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.



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