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In the Matter of the

June 29, 2012

IN THE MATTER OF THE ESTATE OF RICHARD D. EHRLICH, DECEASED.


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County, Docket No. P-2009-2542.

The opinion of the court was delivered by: Parrillo, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 23, 2012

Before Judges Parrillo, Alvarez and Skillman.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

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.

Jonathan 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. McInerney, 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 McInerney, 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 purported 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 the same day this purported Will was drafted - May 20, 2000 - decedent also executed a Power of Attorney and Living Will*fn1 , 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 (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 testamentary 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 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (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 (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 writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and ...


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