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Matter of Estate of Cunningham

Decided: June 21, 1984.

IN THE MATTER OF THE ESTATE OF THOMAS JOHN CUNNINGHAM, DECEASED


Lario, J.t.c. (temporarily assigned).

Lario

In this proceeding there has been offered for probate a writing purported to be the Last Will and Testament dated December 27, 1977 of Thomas John Cunningham who died on September 9, 1983 domiciled in the City and County of Camden, State of New Jersey.

The writing offered is on a printed will form wherein the first and last clauses, plus the attestation clause are mainly printed and the balance is totally handwritten. From the proofs submitted, it is abundantly clear that the handwriting is that of the decedent.

The first paragraph reads: "In the name of God, Amen. I" which is printed followed by the handwriting: "Thomas John Cunningham -- Social Security number 55-24-3083", which in turn is followed by printing: "being of sound mind, memory and understanding, do make and publish this my Last Will and Testament, in manner following, that is to say:"

Included in the body of the will, in the total handwriting of the decedent are instructions concerning the donation of his bodily remains, specific bequests and the devise and bequest of

the remainder of his estate. This is followed by the testimonium clause, which is printed with the exception of the date which is handwritten. Immediately below this clause and to the right, is a printed line, upon which a testator normally signs his name, at the end of which is printed "Seal". The decedent did not sign his name on this line; instead, it contains the signature of a Notary Public of New Jersey, together with his notarial seal impressed over the printed word "Seal".

In addition to the proofs concerning decedent's handwriting, the proponent presented the testimony of two persons who signed the writing as witnesses; the first being the notary who is also a realtor, and the second, who is the realtor's secretary.

Although the writing contains two signatures as witnesses, it cannot be admitted to probate under the provisions of N.J.S.A. 3B:3-2 because the testimony of these witnesses disclosed that the execution of this writing was not in accordance with the formal requirements of the statute which provides:

Except as provided in N.J.S. 3B:3-3, every will shall be in writing, signed by the testator or in his name by some other person in his presence and at his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature of the will.

The witness requirements of this clause probably were met as to the first witness, however, they definitely were not complied with as to the second witness. The notary testified that the decedent came to his office with the proposed will fully completed as introduced in evidence with the exception of the signatures of the witnesses. His recollection of decedent and exactly what transpired was very vague; however, he was requested to sign the purported will as a witness and he identified and recognized the signature and the seal as his. He could recollect no other details concerning his signing or the signing by his secretary. The secretary testified that she did not recall the decedent. She stated that she occupies a room next to the realtor's office and vaguely recollects being called into his office by the realtor to sign a paper. She can recall no other facts although she identified her signature.

Although the recently adopted requirements of N.J.S.A. 3B:3-2 have reduced to a minimum the formalities for execution of a witnessed will,*fn1 it does require that each of the witnesses must witness either (a) the signing of the will by the testator; or, (b) an acknowledgment by the testator that the signature is his. Here, neither witness presented evidence from which it can be concluded that either of these requirements had been complied with as they pertain to the secretary's signature. The first witness testified that the writing had been completed when the testator brought it into his office; therefore, neither witness could have witnessed the signing. ...


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