To avoid such frustration, some courts, although purporting to require literal compliance, have allowed probate of technically-defective wills. See In re Estateof Bochner, 119 Misc.2d 937, 938, 464 N.Y.S.2d 958, 959 (Sur. 1983); In re Will of Leitstein, supra,46 Misc.2d at 657, 260 N.Y.S.2d at 408. Other courts have refused to probate wills because of technical defects despite evidence that the testator meant the document to be a will.
Finally, the Court notes that the issues raised by the use of a preprinted form will and supervision of execution by a non-lawyer should give potential users of these forms reason to pause. SeeEstate of Bochner , 119 Misc 2d 937 (Surr. Ct. Bx. Co. 1983) (noting that, "despite the simplicity of the form she utilized," testator's mistakes in filling it out "approached the brink of having her testamentary scheme fail due to statutory insufficiency."). Many, if not all, of Objectant's concerns would have been avoided had Decedent engaged an attorney to prepare her will and supervise its execution.
In ruling on this issue, the Court relied on New Jersey case law, persuasive authority from other jurisdictions, legislative history of applicable statutes as well as scholarly secondary authority which collectively insist that rigid insistence on literal statutory compliance often frustrates the deliberate and voluntary act of the testator. Matter of the Probate of Ranney, supra, 124 N.J. at 12-14, 589 A.2d 1339; In re Estate of Bochner, 119 Misc.2d 937, 938, 464 N.Y.S.2d 958 (Sur. 1983); Nelson Starck, Formalities and Formalism: A Critical Look at the Execution of Wills, 6 Pepperdine L. Rev. 331, 353-55 (1979). Accordingly, the Supreme Court held that clear and convincing evidence of the witnesses' intent should be adduced to establish substantial compliance with the statute.