APPELLATE DIVISION
Submitted March 10, 2010 – Decided
Before Judges Cuff, Miniman and Waugh.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0057-2009.
PER CURIAM
Appellant Virginia Jeffries appeals the order of the Probate Part admitting the document denominated as the Last Will and Testament of Albertha Blackwell to probate. We reverse and remand for a plenary hearing.
I.
We glean the following facts and procedural history from the record.
A.
Albertha Blackwell died on November 15, 2008, at the age of seventy-six. She was survived by six adult children, several adult grandchildren, and one minor granddaughter, A.Q. It appears that, at the time of her death, Blackwell had joint legal custody of A.Q., whose mother, one of Blackwell's daughters, had died in 2003. It is our understanding that A.Q. lived with her other legal guardian, plaintiff Donna Blackwell-Wooton, one of her maternal aunts.
An undated document purporting to be Blackwell's Will named A.Q., who was then sixteen, as the sole beneficiary of Blackwell's estate, and appointed two of Blackwell's daughters, plaintiffs Blackwell-Wooten and Linda Lee, as co-executors. In the event A.Q. were to have predeceased Blackwell, her estate was to be divided among Blackwell's surviving children.
The purported Will consists of six pages, the first five of which contain what purports to be Blackwell's signature on the side of each page. The signature appears twice on the fifth page, including once on the side of the page. In addition, the signature appears below the following language:
IN WITNESS, I assign my name to this instrument, publish and declare that it is my Will, consisting of six (6) pages, inclusive of the attestation and acknowledgment clauses, this is my free and voluntary act for the purposes herein expressed, and that I am eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
The last page of the purported Will, which is numbered "6," is signed by two witnesses, Beverly Johnson and Bessie Dunk, both of whom have certified that they were working for the scrivener at the time the document was signed. The following language appears above their signatures:
We, Beverly Johnson and Bessie Dunk, the witnesses, sign our names to this instrument and being duly sworn, do hereby declare to the undersigned authority, that the Testatrix signs it willingly, and that each of us, in the presence and hearing of the Testatrix, and of each other, hereby signs this Will as witness to the Testatrix's signing and that, to the best of our knowledge, the Testatrix is eighteen (18) years of age or older, of sound mind and under no constraint or undue influence.
[(Emphasis added).]
Page six does not, however, contain any signature purporting to be Blackwell's on the side of the page, as do the first five pages.
B.
Two of Blackwell's daughters, including defendant Virginia Jeffries, filed a caveat with the Essex County Surrogate's Court on November 24, 2008. In February 2009, Blackwell-Wooten and Lee filed a verified complaint seeking the admission of the purported Will to probate. On March 5, 2009, the Essex County Surrogate issued an order to show cause, returnable before the Probate Part, regarding plaintiffs' application to admit the purported Will to probate.
Jeffries filed an answer and verified counterclaim. In the counterclaim, Jeffries alleged that the purported Will was either invalid or the result of undue influence, but set forth no facts to support her allegations. She did not specifically allege that the signature was a forgery. Prior to the return date, the original document was made available to Jeffries for inspection; and the hearing was subsequently adjourned to permit her to retain a handwriting expert and to allow the parties to submit briefs. Plaintiffs filed a brief[1] and certifications from the witnesses to the purported Will. Jeffries submitted a letter brief, but filed no affidavit or certification.
On May 8, 2009, the Probate judge heard oral argument on the order to show cause. He denied Jeffries' last minute request for a further adjournment. He found that the purported Will was not "self-proved" because it was not in the form required by N.J.S.A. 3B:3-4. The judge noted that "[i]t seems that a Will doesn't have to be a self-proved Will" and can still comply with the statutory requirements of N.J.S.A. 3B:3-2. He determined that there was "no doubt that the Will was witnessed" because both Johnson and Dunk signed the attestation clause. He found no evidence in the record to support Jeffries' claim that the purported Will was not signed by Blackwell. Without taking any testimony,[2] the judge admitted the document to probate as Blackwell's Will and ordered that the caveat be vacated. This appeal followed.
II.
Because the Probate judge held no plenary hearing, our review is plenary. Manalapan Realty, L.L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."); Pressler, Current N.J. Court Rules, comment 3.1 on R. 2:10-2 (2009).
None of the parties contend that the judge erred in concluding that the purported Will was not in the proper form for a self-proved will. N.J.S.A. 3B:3-4. Jeffries argues, however, that because the document did not meet the precise statutory requirements of N.J.S.A. 3B:3-2, it should not have been admitted to probate.
N.J.S.A. 3B:3-2 prescribes three formalities for the execution of a valid will. First, the will must be in writing. N.J.S.A. 3B:3-2(a)(1). Second, the will must be "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction[.]" N.J.S.A. 3B:3-2(a)(2). Finally, the will must be "signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will [by the testator or in the testator's name] or the testator's acknowledgement of that signature or acknowledgement of the will." N.J.S.A. 3B:3-2(a)(3).
The document at issue here is in writing and has what the signors of the last page have certified to be Blackwell's signature on the fifth page as testator. Although Jeffries apparently contests that issue, she submitted no certification asserting that the signature was not her mother's and produced no expert report to that effect, despite having obtained an adjournment for that purpose. Indeed, we see nothing in the record to suggest that she had even retained such an expert.
The question at issue here is whether page six of the document, which contains what was apparently intended as the self-proving affidavit required by N.J.S.A. 3B:3-4, can also be considered as the attestation clause for the purposes of N.J.S.A. 3B:3-2(a)(3). Self-proving affidavits and attestation clauses serve different functions. In re Will of Ranney, 124 N.J. 1, 8 (1991). "Attestation clauses facilitate probate by providing 'prima facie evidence' that the testator voluntarily signed the will in the presence of the witnesses." Ibid. By comparison, self-proving affidavits are "sworn statements by eyewitnesses that the will has been duly executed." Ibid. "Wills may be made self-proving simultaneously with or after execution." Id. at 9; N.J.S.A. 3B:3-4, -5. While "[t]he affidavit performs virtually all the functions of an attestation clause, [it] has the further effect of permitting probate without requiring the appearance of either witness." Ranney, supra, 124 N.J. at 8-9.
In discussing the differences between the two, the Supreme Court noted that the Legislature envisioned the will, including the attestation clause, as being independent from a self-proving affidavit. Id. at 9. Thus, signatures of the witnesses on the self-proving affidavit, but not on an attestation clause, do not literally comply with the requirements of N.J.S.A. 3B:3-2.
However, a will may be admitted to probate under circumstances where it does not literally comply with the statutory attestation requirements if there was substantial compliance. Ranney, supra, 124 N.J. at 11-15. In Ranney, the will of the decedent was prepared by an attorney. Id. at 3. Russell Ranney visited his attorney's office to execute the will, for which another attorney in the firm and a secretary acted as witnesses. Id. at 3-4. These witnesses signed a self-proving affidavit and not an attestation clause. Id. at 4. The Court held that this defect could be overcome by clear and convincing evidence that the will substantially complied with the statutory requirements:
[I]f the witnesses, with the intent to attest, sign a self-proving affidavit, but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be adduced to establish substantial compliance with the statute.
[Id. at 14.]
The record in Ranney suggested "that the proffered instrument was the will of Russell Ranney, that he signed it voluntarily, that [the witnesses] signed the self-proving affidavit at Russell's request, and that they witnessed his signature." Id. at 15. The Court remanded the case for a plenary hearing because the party objecting to the probate of the will questioned whether Russell "actually signed" the document. Ibid. However, the Court held that, if the trial judge conducted a hearing and was satisfied by clear and convincing evidence that the execution of the will substantially complied with the statutory requirements, the will could be admitted to probate. Ibid.
Our review of the record in this case requires us to conclude that a similar remand is required here. As drafted, the purported Will uses signature language for the testator that is consistent with a will drafted under N.J.S.A. 3B:3-2, but the last page lacks the required language for the attestation clause used in the context of a will drawn under that statute. Instead, the witnesses signed their names below language more or less consistent with a self-proving affidavit pursuant to N.J.S.A. 3B:3-4, but the purported testator did not. In addition, the document, including the witnesses' signature and the scrivener's jurat, is undated. There may also be some ambiguity as to whether page six is part of the Will or a separate document. Although it is numbered consistent with being the last page of a six page document, there is no signature by the testator on the side as there was on the first five pages. However, that may be the scrivener's error, as apparently was the failure to date the document.
On remand, the Probate judge should take testimony to determine whether plaintiffs can establish, by clear and convincing evidence, that there was substantial compliance with N.J.S.A. 3B:3-2. He can also consider the applicability, if any, of N.J.S.A. 3B:3-3, which concerns writings intended as wills. We leave it to the sound discretion of the Probate judge whether any further discovery will be permitted on remand.
We decline to reach the counsel fee issue raised by Jeffries, which was not raised in the Probate Part. See N.J. Div. of Youth and Family Servs. v. M.C., ___ N.J. ___, ___ (2010) (slip op. at 22). ("[I]ssues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest."). The issue of counsel fees, including fees on this appeal, can be addressed by the Probate judge pursuant to Rule 4:42-9(a)(3), following the remand hearing.
Reversed and remanded for further proceedings consistent with this opinion.
[1] Attached to the brief were documents intended to demonstrate the date on which the purported Will was executed. Those documents were not, however, supported by a certification from the scrivener, who was also the author of the brief, and are not properly part of the record. See R. 1:6-6.
[2] See N.J.S.A. 3B:3-23 ("If an issue as to the execution of a will arises in a contested probate action, the testimony of at least one of the attesting witnesses, if within the State, competent and able to testify, is required. Other evidence is admissible as to the due execution of a will.").
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