IN RE WILL OF RANNEY
124 N.J. 1, 539 A.2d 1339 (1991)

Procedure:Widow challenged admission of testator's will to probate based on witnesses' signature on self-proving affidavit only and not on will itself. The Superior Court, Law Division, Probate Part, Monmouth County, vacated judgment of Surrogate admitting document to probate. On appeal, the Superior Court, Appellate Division, reversed and remanded, holding that self-proving affidavit was part of will and that witnesses' signature on affidavit constituted signatures on will.

Facts: Two people intending to serve as witnesses to a will signed a sworn affidavit stating they had previously signed their names as witnesses on a will. The attorneys facilitating the will execution ceremony believed the affidavit was sufficient to meet the statutory requirements. The Appellate Court held that the affidavit literally satisfied statutory requirements even though the will did not have an attestation clause.

Issue: May a will which includes the signatures of two witnesses on an attached self-proving affidavit, but not on the will itself, be admitted to probate?

Holding: On widow's petition for certification, the Supreme Court, Pollock, J., held that: (1) signatures on self-proving affidavit did not literally satisfy statutory requirement that at least two persons who witnessed either signing or testator's acknowledgment of signature or of will itself, but (2) will could be admitted to probate if execution substantially complied with statutory requirements. Appellate Division affirmed; remanded to Chancery Division.

Rule: A will may be admitted to probate so long as it substantially complies with the applicable statutory requirements and formalities.

Analysis: The "substantial compliance doctrine" is a fairly recent innovation in the law. As the Ranney court points out, many scholars, as well as the Restatement and the UP©, have adopted this doctrine. Restatement (Third) of Property, Wills and Other Donative Transfers, § 3.3 (1999) reads: "A harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will." UPC § 2-503 states: "[A] ... document or writing is treated as if it had been executed in compliance with [the requirements of § 2-502] if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will." Under the substantial compliance doctrine, which comes into play when the execution was clearly not proper, the proponents of the will have a more significant burden to meet. Under the Restatement (Third) and the UPC they must provide "clear and convincing evidence" that the document to be probated was intended to be the decedent's will. This is, of course, a greater burden on the proponents, and will require more proof and more effort to pass muster.