Will of Ranney, Matter of

• Decision Date: 30 April 1991
• Parties: In the Matter of the Probate of the Alleged WILL OF Russell G. RANNEY, Deceased.
• Court: New Jersey Supreme Court

Page 1

124 N.J. 1

589 A.2d 1339

In the Matter of the Probate of the Alleged WILL OF Russell G. RANNEY, Deceased.

Supreme Court of New Jersey.

Argued Jan. 28, 1991.

Decided April 30, 1991.

Thomas J. Goodwin, for appellant, Betty McGregor (Krugman, Chapnick & Grimshaw, attorneys; Thomas J. Goodwin, Ward C. Laracy, and John P. Belardo, Saddle Brook, on the briefs).

Richard F. Lert, for respondent Ranney School (Wilentz, Goldman & Spitzer, attorneys, Woodbridge).

David L. Menzel for respondents Suzanne R. Bass, Henry Bass, and Harland Ranney (Stryker, Tams & Dill, attorneys; David L. Menzel and Lawrence A. Goldman, of counsel; Caroline Record, Newark, on the brief).

The opinion of the Court was delivered by

POLLOCK, J.

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 Superior Court, Law Division, Probate Part, 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, 573 A.2d 467 (1990). It reversed the judgment of the Law 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, 584 A.2d 230 (1990), and now affirm the judgment of the Appellate Division.

-I-

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.

/s/ Russell G. Ranney

Russell G. Ranney

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, both 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
                STATE OF NEW JERSEY
                ss
                COUNTY OF MONMOUTH
                

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.

                      /s/ Russell G. Ranney
                        RUSSELL G. RANNEY
                         /s/ John Schuster III
                         /s/ Laura J. Stout
                

Subscribed, sworn to, and acknowledged before me, by Russell G. Ranney, the Testator, and subscribed and sworn to before me by JOHN SCHUSTER III and LAURA J. STOUT, witnesses, this 26 day of October 1982.

/s/ Carmella Mattox

Notary

The acknowledgment and affidavit is almost identical to the language suggested by N.J.S.A. 3B:3-5 for a self-proving affidavit signed subsequent to the time of execution. The form for making a will self-proved at the time of execution, as occurred here, is set forth in the preceding section, N.J.S.A. 3B:3-4. Although the subject affidavit was executed simultaneously with the execution of the will, the affidavit refers to the execution of the will in the past tense and incorrectly states that the witnesses had already signed the will.

Immediately after the execution of Russell's will, Betty executed her will in the presence of the same witnesses. As with Russell's will, Schuster and Stout signed the page containing the self-proving affidavit, but did not sign the will. Betty's will contained somewhat different dispositive provisions, and each page bore a legend identifying it as one page of "a three page will." The acknowledgment and affidavit, which appeared on the fourth page of the document, bore the legend "attached to a three page will."

Russell's will gives Betty a life estate in their apartment in a building at 111 Avenue of Two Rivers in Rumson, the rental income from other apartments in that building, and the tuition and rental income from the Rumson Reading Institute, which was merged into the Ranney School after the execution of Russell's will. The will further directs that on Betty's death, the Avenue of Two Rivers property and the proceeds of the Institute are to be turned over to the trustees of the Ranney School.Additionally, Betty receives all of Russell's personal property except that necessary for the operation of the Institute.

The residue of Russell's estate is to be paid in trust to Betty, Kantor, and Henry Bass, Russell's son-in-law, who were also appointed as executors. Betty and Harland Ranney and Suzanne Bass, Russell's two children, are to receive thirty-two percent each of the trust income, and are to share equally the net income from the operation of Ransco Corporation. Nancy Orlow, Betty's daughter and Russell's step-daughter, is to receive the remaining four percent of the trust income. Russell's will provides further that after Betty's death the income from Ransco Corporation is to be distributed equally between Harland Ranney and Suzanne Bass, and on their deaths is to be distributed to the Ranney School.

Russell died on April 4, 1987, and the Monmouth County Surrogate admitted the will to probate on April 21, 1987. Kantor represented Betty during the probate proceedings, but on March 8, 1988, he was disbarred for reasons unrelated to this case. See In re Kantor, 109 N.J. 647 (1988). Subsequently, Betty retained new counsel and contested the probate of Russell's will. She did not, however, assert that the will was the product of fraud or undue influence. Nor did she contend that it failed to express Russell's intent. Her sole challenge was that the will failed to comply literally with the formalities of N.J.S.A. 3B:3-2. Suzanne R. Bass, Harland Ranney, Henry Bass, and the Ranney School urged that the will be admitted to probate.

Without taking any testimony, the Law Division heard the matter on the return date of Betty's order to show cause. The court was satisfied that the will was Russell's last will and testament, but felt constrained to deny probate because the attesting witnesses had not strictly complied with the requirements of N.J.S.A. 3B:3-2.

Although the Appellate Division "decline[d] to hold that the placement of the witnesses' signatures is immaterial," 240 N.J.Super. at 344, 573 A.2d 467, it ruled that the self-proving affidavit was part of the will and that the witnesses' signatures on the affidavit constituted signatures on the will, id. at 344-45, 573 A.2d 467. Treating Russell's will as if it contained a defective attestation clause, the court remanded for a hearing to determine whether Russell had executed the document as his will, whether Schuster and Stout had signed the self-proving affidavit in response to Russell's request to witness the will, and whether they had witnessed either Russell's signature or his acknowledgment of that signature. Id. at 345, 573 A.2d 467.

We disagree with the Appellate Division that signatures on the subsequently-executed self-proving affidavit literally satisfied the requirements of N.J.S.A. 3B:3-2 as signatures on a will. We further hold, however, that the will may be admitted to probate if it substantially complies with these requirements.

-II-

The first question is whether Russell's will literally complies with the requirements of N.J.S.A. 3B:3-2, which provides:

[E]very 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 witnessed either the signing or the testator's acknowledgment of the signature or of the will.

In holding that signatures on the self-proving affidavit satisfy N.J.S.A. 3B:3-2, the Appellate Division relied on out-of-state decisions that permitted the probate of wills when the witnesses signed a self-proving affidavit, but not the will. 240 N.J.Super. at 344, 573 A.2d...