In a Will Contest Do the Witnesses to the Maker’s Signature Have to Read the Document First? (Part 2 of a 3 Part Series)

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate & Estate Administration Attorney

The Will was deemed properly authenticated and admitted to probate. Appellant argued that the trial court erred by failing to require the proponent of the Will, to authenticate all three pages of the Will. He noted that the witnesses could not identify the first two pages of the will and pointed out that decedent did not number the pages. The formatting, he argued, “makes it easy for someone using the same computer on a separate day to alter what may have been on the other two sheets of paper.” He asked the court to “adopt a rule that the proponent of a Will must show no alterations or changes either before or after execution.” He pointed to the availability of computers, which can “duplicate pages with changes from an original Will with no detection.”  Consequently, he urged the court to require “additional safeguards, such as page numbers, initials, and dates of each page, or metadata on the final document.”

The court observed that there is no requirement in the law for witnesses to “read the Will or examine it so as to be able, upon an application to admit the will to probate, to say that all the pages or clauses of the proposed Will were the pages and clauses signed by the testator and attested by them.” It noted that “the forgetfulness of the subscribing witness, as to certain necessary facts of execution, does not avoid a prima facie case made out by proof of the genuineness of the signature of the testator and the subscribing witnesses.” So, where the subscribing witnesses identify their signatures, but have no recollection of having witnessed the instrument, or the circumstances of execution, the presumption is that it was properly executed and will be upheld it in the absence of clear and satisfactory proof to the contrary. In my final post I will conclude with the court’s analysis.

To discuss your NJ Probate & Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

 

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