Legal Memorandum: Validity of a Will in NJ

Issue: Under New Jersey law, is substantial compliance with the requirements for the execution of a will sufficient to make the will valid?

In re Will of Ranney, 124 N.J. 1, 589 A.2d 1339 (1991), a widow sought to challenge the probate of her late husband’s will on the ground that the witnesses to the signing of the will had signed the self-proving affidavit affixed to the will rather than the will itself.  124 N.J. at 4, 589 A.2d at 1340.  Although the affidavit was executed simultaneously with the execution of the will, the affidavit referred to the execution of the will in the past tense and incorrectly stated that the witnesses had already signed the will.  Id. at 5, 589 A.2d at 1341.  The New Jersey Supreme Court held that the signatures on the self-proving affidavit did not literally satisfy the requirements of N.J.S.A. § 3B:3-2 as signatures on a will.  Id. at 7, 589 A.2d at 1341-42.  However, in a departure from Hale and its progeny, the court held that the will could be admitted to probate if it “substantially complies with these requirements.”  Id.

There is nothing preventing a notary public who in fact witnesses the execution of a will from serving as a statutory witness to the execution.  See In re Estate of Cunningham, 198 N.J. Super. 484, 487 A.2d 777 (Law Div. 1984) (realtor served as a witness and as a notary, and the will was denied probate not on the ground of that signature being defective, but on other grounds).  Further, in Ranney the placement […]