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In re Estates of Pilar and Luis Fernandez

Decided: March 5, 1980.

IN THE MATTER OF THE ESTATES OF PILAR FERNANDEZ AND LUIS FERNANDEZ


Yanoff, J.s.c.

Yanoff

The crucial issue here is whether the will of Pilar Rodriguez Fernandez (Pilar) was validly executed. The issue arose because Giovanna Trupia (Giovanna), Pietro Trupia, the father (Pietro) and Vincenza Trupia (Vincenza), whose names appear as witnesses on the will, refused, in the surrogate's office, to execute affidavits that they had witnessed the execution of the will. The surrogate found doubt on the face of the will. The matter then was referred to the Superior Court pursuant to N.J.S.A. 3A:2-3 to 5 and R. 4:84-1(d) and (e).

Offered for probate were the wills of Pilar and Luis Fernandez (Luis), her husband. Luis bequeathed his entire estate to Pilar, and died April 10, 1979. Pilar died June 26, 1979. Both deaths occurred after September 1, 1978, the effective date of the probate code (N.J.S.A. 3A:2A-1 et seq.).

Both wills were executed at the same time and under the same circumstances. I have concluded that both wills should be admitted to probate. Nevertheless, it should be noted that since there is no evidence that Luis was survived by issue or parent, Pilar takes Luis's estate by intestacy (N.J.S.A. 3A:2A-34), if not by will.

The genuineness of Luis' and Pilar's signatures on the wills is not disputed, nor is it denied that the names of Giovanna, Pietro and Vincenza Trupia appear in the places usual for witnesses to

sign. It is asserted, however, by the Trupias that the testator and testatrix did not declare the respective writings to be their last wills, that the witnesses were not asked to be witnesses to wills, and that the witnesses affixed their signatures not knowing they were acting as witnesses to wills, and that, therefore, there was compliance with neither N.J.S.A. 3A:3-2 (the former statute) nor N.J.S.A. 3A:2A-4 (the present statute). It is urged, also, that since the wills were executed in August 1978, N.J.S.A. 3A:2A-4 does not apply, despite the fact that Pilar died after its effective date.

Maria del Carmen Rodriguez (Maria), niece of Pilar, and Javier Perez Lopez (Javier), her husband, are the beneficiaries of both wills. Pilar and Luis were next door neighbors to the Trupias. Maria and Javier testified in support of the wills. I accept their testimony as substantially accurate, even though I recognize their interest in the outcome. I come to this conclusion partly because of my impressions of their personalities, partly because of certain uncontradicted facts, and partly because the Trupias, who testified in opposition, were in my judgment utterly incredible.

I therefore find the following facts: The wills were prepared by Joseph Taboada, Jr. (Taboada), a member of the New Jersey Bar. Javier obtained the wills in a sealed envelope which he brought to Maria. Taboada gave either Javier or Maria instructions as to how the wills were to be executed. I am not able to find that he told them how to comply with N.J.S.A. 3A:3-2 (the former statute). The envelope was opened in Maria and Javier's presence, and at that point they learned, if they did not already know, that the instruments were wills. Despite a dispute between the Fernandezes and the Trupias by reason of a boundary fence, Pilar called to Pietro, whom he saw in the yard, to come with his family to witness the wills. Pietro summoned Giovanna and Vincenza and the three went to the Fernandez home where they and Maria and Javier saw Luis and Pilar sign the wills. Before the Trupias affixed their signatures, Vincenza read the

instruments and told them it was all right to do so. The facts do not show that testator and testatrix used the customary language declaring the respective instruments their wills, but it is certain that all present knew that Luis and Pilar were signing their wills and that the Trupias were witnessing their signatures.

The instruments themselves, with the signatures thereon, are objective facts supporting this conclusion. The opening paragraph states that the instrument is a will, as does the backer. The words "Last Will and Testament" appear on the page which bears the witnesses' signatures in the case of Pilar's will, and the word "Testament" appears on the equivalent page of Luis' will. The paper is stiff and heavy. Even an untutored person must have realized what they were.

The native tongue of the Trupias is Italian. However, they have some knowledge of English. It was necessary to have an Italian interpreter for Giovanna and Pietro. But Vincenza and her brother Vincent, who also testified, have fluent command of English. Vincenza has a considerable knowledge of Spanish and Pietro knew some Spanish. Luis and Pilar knew English and Spanish. Maria knew only Spanish. Javier knew Spanish and a few words of Italian. All communicated in a melange of languages and by signs. It is not conceivable ...


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