On certification to the Superior Court, Appellate Division, whose opinion is reported at 240 N.J. Super. 337 (1990).
The opinion of the Court was delivered by Pollock, J. Justices Clifford, Handler, O'Hern, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz did not participate.
The sole issue is whether an instrument purporting to be a last will and testament that includes the signature of two witnesses on an attached self-proving affidavit, but not on the will itself, should be admitted to probate. At issue is the will of Russell G. Ranney. The Monmouth County Surrogate ordered probate of the will, but the Chancery Division reversed, ruling that the will did not contain the signatures of two witnesses as required by N.J.S.A. 3B:3-2. The Appellate Division found that the self-proving affidavit formed part of the will and, therefore, that the witnesses had signed the will as required by the statute. 240 N.J. Super. 337 (1990). It reversed the judgment of the Chancery Division and remanded the matter for a plenary hearing on the issue of execution. We granted the contestant's petition for certification, 122 N.J. 163 (1990), and now affirm the judgment of the Appellate Division.
The following facts emerge from the uncontested affidavits submitted in support of probate of the will. On October 26, 1982, Russell and his wife, Betty (now known as Betty McGregor), visited the law offices of Kantor, Mandia, and Schuster to execute their wills. Russell's will consisted of four pages and a fifth page containing a self-proving affidavit, entitled "ACKNOWLEDGMENT AND AFFIDAVIT RELATING TO EXECUTION OF WILL." The pages of Russell's will were neither numbered nor attached before execution. After Russell and Betty had reviewed their wills, they and their attorney, Robert Kantor, proceeded to a conference room, where they were joined by Kantor's partner John Schuster, III and by two secretaries, Laura Stout and Carmella Mattox, who was also a notary.
Consistent with his usual practice, Kantor asked Russell if the instrument represented Russell's will and if Russell wanted
Schuster and Stout to act as witnesses. Russell answered both questions affirmatively, and signed the will on the fourth page:
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of October, One Thousand Nine Hundred and Eighty Two.
No one else signed the fourth page of the will. Russell, followed by Schuster and Stout, then signed the self-proving affidavit on the fifth page. Both Schuster and Stout believed that they were signing and attesting the will when they signed the affidavit. Furthermore, Kantor, who had supervised the similar execution of many wills, and Schuster believed that the witnesses' signatures on the "Acknowledgment and Affidavit" complied with the attestation requirements of N.J.S.A. 3B:3-2. Mattox, whose practice was to notarize a document only if she witnessed the signature, notarized all the signatures.
After execution of the will, Stout stapled its four pages to the self-proving affidavit. The fifth and critical page reads:
ACKNOWLEDGMENT AND AFFIDAVIT RELATING TO EXECUTION OF WILL
RUSSELL G. RANNEY, JOHN SCHUSTER III, and LAURA J. STOUT, the Testator and the witnesses, respectively whose names are signed to the attached instrument, being first duly sworn, do hereby declare to the undersigned authority that the Testator signed and executed the instrument as his Last Will and Testament and that he signed willingly and that he executed it as his free and voluntary act for the purposes therein expressed; and that each witness states that he or she signed the Will as witnesses in the presence and hearing of the Testator and that to the best of his or her knowledge, the Testator was at the time 18 or more years of age, of sound mind and under no constraint or undue influence.