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In re Probate of Will of Ferrulli

Decided: March 17, 1969.

IN THE MATTER OF THE PROBATE OF THE WILL OF ANTONIO FERRULLI, DECEASED


Schneiderman, J.c.c.

Schneiderman

This action arises by virtue of an order to show cause why the judgment admitting the will of Antonio Ferrulli to probate by the Hudson County surrogate's court should not be set aside.

Antonio Ferrulli died on March 5, 1968, survived by his sons John and Alfonse Ferrulli, and his daughters, Mary Cipoletti and Antoinette Nicoletti.

On April 5, 1968, John Ferrulli offered the document purporting to be the last will and testament of Antonio Ferrulli for probate to the surrogate's court of Hudson County. Also appearing at that time was Joseph Critelli, one of the three witnesses to this last will and testament. Joseph Critelli made the required affidavit and the will was admitted to probate, with John Ferrulli appointed as the executor of the will.

On December 12, 1968 an order to show cause why the will should not be set aside was brought on behalf of Alfonse Ferrulli, which was later joined in by Mary Cipoletti and Antoinette Nicoletti.

The uncontested facts as gleaned from the affidavits are as follows: Mary Critelli, the person who assisted Antonio Ferrulli in the making of his purported last will, read it on April 3, 1968 to his four children. Some discussion of the will ensued. All four children received a photostatic copy of the purported will on or about April 15, 1968.

Was The Action Of The Surrogate Admitting

The Will To Probate Proper?

The attestation clause of the will read as follows:

"WE, whose names are hereto subscribed, do certify that the testat , subscribed name to this instrument in

our presence, and in the presence of each of us, and at the same time declared in our presence and hearing that same was last Will and Testament, and requested us, and each of us, to sign our names thereto as witnesses to the execution thereof, and which we hereby do in the presence of the testat and of each other, this 6th day of March 1967, the day of the date of said Will, and write opposite our names our respective places of residence."

The opponents of the will contend that the will contained an incomplete attestation clause, which was a defect on the face of the will under R.R. 5:3-3(a)(2). They therefore argue that the surrogate was without jurisdiction, and since his judgment is void, the ...


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