In re Berryman

• Court: New Jersey Superior Court
• Writing for the Court: FISHER, P.J.A.D. (T/A, RETIRED ON RECALL).
• Docket Number: MON-P-410-24
• Decision Date: 09 March 2026
• Citation: In re Berryman, MON-P-410-24 (N.J. Super. Mar 09, 2026)
• Parties: IN THE MATTER OF ESTATE OF SUZANNE CALLOW BERRYMAN, Decedent.

1

IN THE MATTER OF ESTATE OF SUZANNE CALLOW BERRYMAN, Decedent.

No. MON-P-410-24

Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth

March 9, 2026

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

Louis E. Granata, P.C. (Louis E. Granata, Esq., appearing) attorneys for plaintiff Wayne Callow.

Lomurro, Munson, LLC (Eric H. Lubin, Esq., appearing) attorneys for defendant/third-party plaintiff Jaclyn Berryman.

Elaine M. Diamantides, Esq., attorney for defendant/third-party plaintiff Austin Berryman.

Weiner Law Group LLP (Michael Mietlicki, Esq., appearing), attorneys for third -party defendants Patricia Marrese and Kathleen Mietus Riviere.

OPINION

FISHER, P.J.A.D. (T/A, RETIRED ON RECALL).

Two motions are before the court in this will contest. One - filed by defendant Jaclyn Berryman and joined in by defendant Austin Berryman - seeks a declaration, by way of summary judgment, that Suzanne Callow Berryman's August 12, 2024 Will - which disinherits her children, Jaclyn and Austin, in favor of her brother, plaintiff Wayne Callow, and third-party defendants Patricia Marrese and Kathleen Mietus Riviere - is invalid either because it was not properly witnessed or because one of the Will's witnesses should not be credited. The second motion - filed by Wayne and joined in by Patricia and Kathleen - seeks to bar testimony from Jaclyn's and Austin's experts about Suzanne's state of mind and whether she was subjected to undue influence.

Because the onus Jaclyn and Austin would place on a will's witness far exceeds what is required and conflates the concept of what is sufficient to make a valid will under N.J.S.A. 3B:3-2 with what makes a will self-proving under N.J.S.A. 3B:3-4, and because the doctrine of substantial compliance, see In re Will of Ranney, 124 N.J. 1, 10 (1991); In re Estate of Peters, 107 N.J. 263, 281 (1987), arguably counsels against strict formalism in these circumstances, summary judgment must be denied. The motion to bar expert testimony must also be denied, but without prejudice, because the sufficiency or propriety of the offered expert testimony will be better illuminated at trial.

I

Jaclyn's summary judgment motion questions whether Suzanne's Will fails to comply with N.J.S.A. 3B:3-2, which requires that a valid will must be witnessed by two individuals. On its face Suzanne's Will meets this standard because it bears the signatures of two witnesses (Louis E. Granata, Esq., and Robert Devino); the Will also purports to be self-proving because it contains the attestation by a notary (Donna Fitz), so, in fact, three individuals attended the Will's solemnization and signed the Will. In moving for summary judgment, Jaclyn and Austin would have the court look behind the Will's appearance by contending that one of the witnesses, Robert Devino, did not understand his role and, therefore, should not be counted when applying N.J.S.A. 3B:3-2's two-witness requirement.

The Supreme Court has held that a witness to a will serves both an observatory and a signatory function. See Peters, 107 N.J. at 274. In layperson's terms, a witness must watch and sign. But Jaclyn argues that the "observatory function includes ensuring the testator 'is of sound mind and not acting under any constraint or undue influence.'" JB Br at 1 (quoting In re Estate of Gerhardt, 336 N.J.Super. 157, 164 (Ch. Div. 2000)). Jaclyn extrapolates from what the late Chancery Judge Theodore Z. Davis said in Gerhardt, that Devino "cannot be a witness because he did not even know that he was supposed to be determining whether the [d]ecedent was under undue influence or constraint when signing the will." Ibid. (emphasis added). They claim Devino does not come up to this standard because he testified at his deposition that he did not read and was otherwise unfamiliar with the attesting language on the Will above where he signed the document for the second time. ^[1] In considering this argument, the court must not only consider what the law requires but also the particulars of Suzanne's Will; this latter aspect will be discussed first so that the former might be placed in context.

Movants' argument, it is important to observe, does not appear to distinguish between the witnessing of a will's execution and the participation in the attestation clause needed to make the Will self-proving. In looking at this Will, the witnesses (Granata and Devino) signed twice. Above the location where they first signed as witnesses, the document states that in their presence the testator

all of the pages of the foregoing Will . . . [and] [a]t the same time and at the Testatrix's request . . . [the witnesses] hereby sign our names as attesting witnesses in the presence of the Testatrix and of each other.

In the second location, the witnesses "declare[d] to the undersigned authority," referring to the notary public (Fitz), that

the Testatrix signed and created this instrument as her Last Will and Testament and that she signed it willingly; that each of us, in the presence and hearing of the Testatrix, hereby signs this Last Will and Testament as witness to the signing thereof by the Testatrix; and that to the best of our knowledge the Testatrix is 18 years of age or older, of sound mind and under no constraint or undue influence.

The language above the first signatures establishes Granata and Devino's roles as witnesses to the Will's execution. N.J.S.A. 3B:3 -2 does not require any particular language (or any language at all) expressing the witnesses' role. The second statement, under which the witnesses signed the document for the second time, is that which would make the Will "self-proving" under N.J.S.A. 3B:3 -4.^[2] Jaclyn's motion is based on Devino's deposition testimony in which he stated he had no familiarity with the second statement^[3] or its meaning. See n. 1. Because the second statement and the second signatures weren't necessary to make this a valid will - they only purport to make Suzanne's Will self-proving - for that reason alone the motion must be denied.

Moreover, the court rejects the argument that a witness's signatory and observatory roles encompass an investigatory role. It is certainly true that an individual should not act as a witness if it appears during the ceremony that the testator is under duress or speaking or acting in a way that would call into question the soundness of the testator's mind or the voluntariness of the testator's act. But that does not require the witness to conduct an independent examination or allow for an interrogation of the testator into the possibility of undue influence or coercion. It is enough, as may be assumed at this stage,^[4] that the witness was present and observed the solemnization, saw nothing concerning, and signed the document. That is, a witness is obligated to observe the testator execute the document,^[5] and then the witness must sign the document for the purpose of expressing that he witnessed the testator's execution of the will and that the document on which the signatures appear is in fact the paper that is later presented for probate.^[6] Witnesses are not obligated to independently investigate; they are only obligated to observe and sign. To be sure, witnesses must decline signing if they question the testator's intentions or believe undue influence has been wielded from what they have observed during the ceremony .^[7] N.J.S.A. 3B:3-2 does not impose any greater duty.

Gerhardt, on which movants greatly rely, does not suggest otherwise. Gerhardt instead only confirms that, in that particular case, the testator appeared to the witness to be competent and, as well, appeared at that particular time to not be "acting under any constraint or undue influence." 336 N.J.Super. at 164. Whether Devino, at trial, will say something consistent or inconsistent with that limited function may or may not suggest he was a sufficient witness within the meaning of N.J.S.A. 3B:3-2. But we are now at the summary-judgment stage, would have stretched the substantial compliance doctrine too far for the Supreme Court and was found fatal, 107 N.J. at 283. and Devino's deposition testimony does not reveal any patent inadequacy in the exercise of his signatory and observatory obligations.

In addition, it bears noting that in Gerhardt the will was witnessed by only one witness and a notary. If the court were to accept movants' expansive view of Gerhardt,^[8] even a rejection of Devino as a witness to the Will would not necessarily preclude a finding of the validity of Suzanne's Will because, in Gerhardt, the court applied the doctrine of substantial compliance, Ranney, 124 N.J. at 10; Peters, 107 N.J. at 281, and found that N.J.S.A. 3B:3-2's requirements were met when the will was witnessed by only one witness and a notary, Gerhardt, 336 N.J.Super. at 164-65. So, even without Devino there would still be, like Gerhardt, one witness (Granata) as well as a notary (Fitz), who attended the Will's execution and signed the document; that's two, and two is all N.J.S.A. 3B:3-2 requires.

It is also argued by Austin that Devino's testimony cannot be credited because he then and currently suffers from Parkinson's Disease. See AB Br at 4. To be clear, Austin does not argue that Parkinson's Disease alone "automatically disqualifies a witness"; he instead argues that Devino testified at his deposition to short-term memory deficits causing him not to remember "recent conversations." Ibid.^[9] Austin argues that when that medical information is "considered together with Devino's testimony that he never read the attestation paragraph [above his second signature] and did not understand the undue influence/constraint concepts he was purportedly ce rtifying Devino's...