On appeal from the Appellate Division, Superior Court, whose opinion is reported at 210 N.J. Super. 295 (1986).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.
This case requires our determination of whether a will can be admitted to probate despite the fact that it lacked the signatures of two witnesses, as prescribed by the statute, N.J.S.A. 3B:3-2, governing the formal requirements for the execution of a will. The Superior Court, Law Division, ordered that the will be probated, despite the absence of the signatures of witnesses; it held that under the circumstances allowing a witness to sign was a proper exercise of its equitable powers. The Appellate Division reversed, ruling that literal compliance with the formal statutory requirements governing the execution of wills was mandated, and that the court had no power to excuse the failure to have the will subscribed by the witnesses as required by the statute. In re Estate of Peters, 210 N.J. Super. 295 (1986). The case is before this Court on appeal as of right, as a result of the dissent from the decision below. R. 2:2-1(a)(2). We affirm the judgment below.
Joseph Skrok commenced an action in the Middlesex County Surrogate's Court, seeking the admission to probate of a will
executed by Conrad Peters, Skrok's step-father. The will designated Skrok as an executor. The Surrogate denied admission to probate of the proffered will for the reason that it did not bear the signature of two witnesses. This caused the intestacy of the decedent's estate, there apparently being no next-of-kin of the decedent. Because the estate in intestacy would escheat to the State, the trial court directed the State to show cause why the proffered will should not be admitted to probate. The State then brought a motion for summary judgment to deny probate of the proffered will.
The testimony at the hearing on the motion disclosed that Conrad Peters, the testator, died on March 28, 1985. Prior to his death, Peters had been married to Marie Peters (formerly Gall); they had no children during their marriage. Marie Peters had been married once before, and had one son, Joseph Skrok, during her previous marriage. Marie Peters died on March 23, 1985, approximately 126 hours before the testator, so that at the time of his death Conrad Peters had no surviving relatives.*fn1
The circumstances surrounding the execution of the will are important. In December 1983, the testator was in the hospital for treatment following a stroke. While Peters was hospitalized,
a will was prepared for his signature by Sophia M. Gall, Peters' sister-in-law. Ms. Gall had prepared an identical will for her sister, Marie Peters. The wills were drawn up at the request of Marie Peters, who apparently had discussed the need for these wills with her husband in mid-December, 1983. Although Conrad Peters was physically disabled as a result of the stroke, he suffered no mental disability; accordingly, his competency to make a will has not been questioned.
The dispositive provisions of the two wills complemented each other. Each provided for the distribution of the entire estate, after payment of debts and funeral expenses, to the surviving spouse. Both appointed the surviving spouse as executor. Additionally, both wills named Joseph Skrok, Marie Peters' son, as the alternate beneficiary and alternate executor.
On December 30, 1983, Sophia Gall came to the testator's hospital room with her husband and Marie Peters. Ms. Gall read the provisions of the will to Mr. Peters; he then assented to it, and signed it. Although Ms. Gall, her husband, and Mrs. Peters were present at the time, none of these individuals signed the will as witnesses. It was the apparent intention of Ms. Gall, who was an insurance agent and notary, to wait for the arrival of two employees from her office, who were to serve as witnesses.
When those two employees, Mary Elizabeth Gall and Kristen Spock, arrived at the hospital, Sophia Gall reviewed the will briefly with the testator, who, in the presence of the two women, again indicated his approval, and acknowledged his signature. Ms. Gall then signed the will as a notary, but neither of the two intended witnesses placed her signature on the will. Ms. Gall folded the will and handed it to Mrs. Peters. Conrad Peters died fifteen months later, on March 28, 1985. At the time of his death the will was still not signed by either of the witnesses.
At the Probate Court proceeding, Ms. Gall testified as to why the two intended witnesses never signed the will:
As I say, just because of the emotional aspect of the whole situation, my sister-in-law was there, my husband, 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 known 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 an affidavit executed on June 28, 1985, Ms. Gall explained that her failure to obtain the signatures of the two witnesses was the result of her being "affected emotionally by [the testator's] appearance."
According to Sophia and Charles Gall, Conrad Peters signed the instrument in their presence but before the arrival of the intended witnesses. However, an affidavit submitted to the court by Mary Elizabeth Gall on July 29, 1985, alleges that Mary Elizabeth Gall was present while Conrad Peters signed his will, and that she actually observed him as he executed the document. Plaintiff's only explanation for this discrepancy is that the affidavit was executed approximately eighteen months after the ceremony at the hospital. The State, however, does not argue that the contradictory versions raise the possibility of fraud with respect to Conrad Peters' will.
The trial court found that the proffered instrument "was properly executed" because it was signed by the testator in the presence of two individuals, who were in his presence and that of each other. It further found that in such circumstances, the notary could be considered a subscribing witness and the probate action handled just as if one of two witnesses had died and the instrument were being proved by the testimony of the one surviving witness. According to the court, the failure of the intended witnesses to subscribe the instrument could be ignored as a mere "quirk," which should not be allowed to frustrate the obvious testamentary intent of the decedent. Where, as here, the alternative would be an escheat to the State, the trial court found that it had "equitable powers" to avoid what it perceived as a miscarriage of justice. Accordingly, the court ordered that
the second witness, also present at the December 30, 1983, execution ceremony, be permitted to sign the document. Pursuant to this order, Skrok commenced an action in the Surrogate's Court, seeking to have the proffered will, now bearing the additional signature of a witness, admitted to probate in common form. Letters Testamentary were issued to Skrok.
As noted, the Appellate Division reversed the trial court and remanded the case for entry of judgment dismissing the action. In re Estate of Peters, supra, 210 N.J. Super. at 295. The court held that the Probate Court was without power to cure a will's failure to comply with the statutory formalities; that New Jersey case law indicated that literal compliance with the wills statute was required in order for a will to be valid; and that, in any event, the evidence in this case, which contained significant contradictions and an inadequate explanation for the failure to obtain the witnesses' signatures, did not support application of a "substantial compliance" rule to uphold the will. One judge dissented, taking the position that there was nothing in the statute invalidating post-death signatures by attesting witnesses. Furthermore, according to the dissent, the execution of the will undertaken in this case was in substantial compliance with the statutory requirement, and should therefore be upheld. 210 N.J. Super. at 311-12.
The operative statute governing the validity of the execution of a will is N.J.S.A. 3B:3-2. The statute prescribes the formalities necessary for the proper execution of a will. It requires (1) that the will be in writing and (2) that it be signed by the testator (or by someone in his presence and at his direction). It also requires that a will be signed by at least two persons who witnessed either (a) the signing or (b) the testator's acknowledgement of his signature or of the will.
The narrow issue in this case is whether the statute authorizes a person who has witnessed the testator's execution or
acknowledgement of the will to sign the will as a witness after the testator has died; the broader issue is whether the statute places any limits on how long after the testator's execution or acknowledgement of the will a witness may affix his or her signature. These questions are necessarily determined by what the Legislature intended by the formalities that are prescribed in N.J.S.A. ...