Trial Court Clarifies Witness Role in the Execution of a Last Will and Testament
In re Estate of Berryman, MON-P-410-24 (N.J. Super. Ct. Ch. Div. March 9, 2026)
This will contest addressed the role of the witness to the will.
The defendants moved for summary judgment declaring the decedent’s will invalid since it was not properly witnessed.
The will was witnessed by two individuals, including an attorney, with a notary present. The defendants contended that one of those witnesses did not understand his role as a witness; thus, the will failed to meet the requirements of N.J.S.A. §3B:3-2, which requires that the will must be witnessed by two individuals. However, that statute does not require any particular language expressing the role of the witness.
The defendants argued that one of the witnesses testified in his deposition that he: never heard of the terms “undue influence” or “undue restraint”; did not do any investigation to determine whether the testator was being influenced; and had never read the paragraph referring to the attesting language before.
The trial court denied the motion. It found that the will met the statutory requirements on its face since the will bore the signatures of two witnesses and contained the attestation by a notary. Therefore, three individuals attended to the execution.
The judge also applied the doctrine of substantial compliance to deny the summary judgment motion.
The court rejected the argument that a witness must conduct an independent investigation into potential undue influence on a testator and explained that a witness’s role is merely to observe the testator’s signature and sign the will. In the context of the motion for summary judgment, the court could assume that the witness was present, observed the execution, saw nothing of concern, and signed the document. The court left open the prospect that at trial the witness might testify inconsistently with his limited function, but at the summary judgment stage the court found nothing in the witness’s testimony to invalidate the will.