On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, Simpson and Scalera. The majority opinion of the court was delivered by Scalera, J.s.c. temporarily assigned. Simpson, J.A.D., dissenting.
This case requires us to decide whether a will may be validated where one of the two statutorily required witnesses neglects to append her signature when it was executed.
The State appeals from an order of the trial court admitting to probate a will of the late Conrad Peters. Pursuant to that will, respondent Joseph Skrok became the sole beneficiary of the estate. We reverse and enter judgment denying probate of the document as a will.
Conrad Peters, a German immigrant and a resident of South River in Middlesex County, died on March 28, 1985. He was married on June 8, 1946 to Marie Skrok, nee Gall. Marie was then a widow and had had one child by her first marriage, Joseph Skrok, the respondent. No children were born to the marriage of Conrad and Marie; Conrad did not adopt Joseph Skrok. The identity and location of any next-of-kin of Conrad Peters are unknown except that respondent asserts that "every one" of decedent's relatives predeceased him. Marie Peters died intestate on March 23, 1985 only five days before Conrad died.
On December 30, 1983, fifteen months before he died, Conrad Peters was hospitalized in a ward at Roosevelt Hospital in Edison, suffering from the effects of a stroke which left him physically disabled, but mentally sound. At Marie's request
Sophia Gall, (Sophia) her sister, an insurance agent, prepared a will for Conrad and brought it to the hospital for execution; that will devised his entire estate to his wife Marie, but if she predeceased him, the estate was devised to his stepson, Joseph Skrok. Sophia was a notary public and arranged to have two employees of her office come to the hospital to act as witnesses to the execution. Sophia read the will to Conrad and he agreed that it was what he wanted. He allegedly then signed the will in the presence of Sophia, Charles Gall (Sophia's husband) and Marie.
When the will was typed, Sophia included two signature lines for witnesses; under one line was typed the name Mary Elizabeth Gall (Sophia's daughter-in-law), and under the other was typed Kristen Spock, both of whom were employees of Sophia. According to Sophia both witnesses arrived at the hospital after Conrad had signed the will and when the two intended witnesses arrived, she "briefly went over the will again." Sophia then signed the will in the space indicated for the notary. However, neither of the intended witnesses ever actually signed the will. At the hearing only Sophia sought to explain why:
As I say, just because of the emotional aspect of the whole situation, her brother was there, myself and the two girls. There were six of us. The other patients had visitors. It got to be kind of -- I don't know how to explain it, just the situation, and the girls were in a hurry to get back to the office, because they had to leave the office.
I honestly think in their minds, when they saw me sign the will, they thought that is why they were there. And we folded up the will, gave it to my sister-in-law. It was just that type of situation.
In her affidavit of June 28, 1985, filed after the court hearing on July 29, 1985, Sophia said that she had neglected to obtain the other witnesses' signatures because she "was affected emotionally" by the testator's appearance from the effects of the stroke.
One of the intended witnesses, Mary Elizabeth Gall, also executed an affidavit (apparently submitted to the Probate Part judge but filed after the hearing on July 29, 1985) which varies from Sophia's testimony with respect to the sequence of events.
While Sophia said that Conrad signed before the two witnesses got there, Mary Elizabeth Gall said he signed the will after she arrived:
On December 30, 1983, I went to Roosevelt Hospital, Edison, New Jersey. At that time and place, I heard the said Sophia M. Gall read to Conrad Peters his will. When she asked him thereafter if it was his will, he replied in the affirmative.
I looked on, while Conrad Peters signed his will.
In May 1985 plaintiff Joseph Skrok filed a complaint in the Law Division, Probate Part, seeking to admit to probate the will of Conrad Peters, his stepfather as the contingent beneficiary of testator's estate. The will had already been denied probate by the Middlesex County Surrogate because two witnesses had not signed the document. Plaintiff demanded "judgment permitting a second witness to sign the will, and thereafter admitting it to probate." An order to show cause was issued and the matter was scheduled for hearing. Since decedent's estate would escheat to the State if the will were not accepted for probate, the State moved for summary judgment seeking to defeat the application. N.J.S.A. 3B:5-5.
The hearing consisted of briefs, oral argument and the testimony of Sophia on July 12, 1985. The Probate Part judge then rendered an oral opinion admitting the will to probate upon the condition that one of the other witnesses sign the will and execute an affidavit attesting to her presence at the time of execution. An order to this effect was entered accordingly on July 29, 1985. Thereafter, plaintiff refiled a complaint in the surrogate's court, along with the affidavit from one of the non-signing witnesses and obtained letters testamentary on September 3, 1985.
The State contends that the trial judge erred in granting probate because the will was not executed in accordance with the statutory requirements relating to execution of wills and that the decision was motivated solely by a desire to avoid an escheat to the State. Respondent, as the sole beneficiary under the will, if validated, argues that the statutory requirements
were met and, in the alternative, urges that the events which occurred were in substantial compliance with the applicable statutory ...