Legal Memorandum: Valid Acknowledgment of a Will in NJ

Issue: What is a valid acknowledgment of a will, under New Jersey law?

N.J.S. § 3B:3-2 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 witnesses either the signing or the testator’s acknowledgement of the signature or of the will.

N.J.S. § 3B:3-2 (1983).

There is no requirement in the statute or current case law that the acknowledgment precede the witness signature in order for there to be substantial compliance. As stated in Ranney:

“[I]t would be ironic to insist on literal compliance with statutory formalities when that insistence would invalidate a will that is the deliberate and voluntary act of the testator.  Such a result would frustrate rather than further the purpose of the formalities.”

Will of Ranney, 124 N.J. 1, 589 A.2d 1339 (1991)

In the cases of In re Sutterlin’s Will, 99 N.J. Eq. 363, 132 A. 115 (1926) and In re Wheary’s Estate, 18 N.J. Misc. 436, 14 A.2d 489 (Orphans’ Ct. 1940), it is shown that the witness must complete his/her observatory function prior to performing his/her signatory function.  However, both of these cases were decided under prior will statutes and, more importantly, before the substantial compliance doctrine was adopted in New Jersey. 

Under New Jersey law there is no “express statement necessary by the testator that he […]