In re Estate of Peters - 107 N.J. 263, 526 A.2d 1005 (1987)

Rule:

Witnesses to a will serve two functions, which can be characterized as "observatory" and "signatory." N.J. Stat. Ann. § 3B:3-2 clearly requires the fulfillment of both functions. The observatory function consists of the actual witnessing, the direct and purposeful observation, of the testator's signature to or acknowledgement of the will. It entails more than physical presence or a casual or general awareness of the will's execution by the testator; the witnessing of a will is a concomitant condition and an integral part of the execution of the will. The signatory function consists of the signing of the will by the persons who were witnesses. The signatory function may not have the same substantive significance as the observatory function, but it is not simply a ministerial or precatory requirement. The witness' signature has significance as an evidentiary requirement or probative element, serving both to demonstrate and to confirm the fulfillment of the observatory function by the witnesses. 

Facts:

Appellant executor sought admission of a decedent's will, and admission to probate was denied because the will did not bear the signature of two witnesses, as required by N.J. Stat. Ann. § 3B: 3-2. The trial court ordered that the witnesses sign the will and that the will be probated, but the appellate division reversed, ruling that literal compliance with the statutory requirements was mandated. 

Issue:

Can a will be admitted to probate despite the fact that it lacked the signatures of two witnesses, as prescribed by the statute, N.J.S.A. 3B:3-2, governing the formal requirements for the execution of a will?

Answer:

No.

Conclusion:

The court affirmed and held that the prophylactic purpose of preventing fraud was substantially undermined if "witnesses" to a will that contained no witnessing signatures were allowed to testify to their presence at the execution, no matter how much time had elapsed between execution and the affixing of their signatures, which would have had the effect of eliminating the signing requirement in its entirety. By acknowledging that there were some cases where post-execution signatures were not barred, witnesses' signatures could have been obtained within a reasonable period after the will was executed. The court held that a 15-month interval, without any extenuating circumstance, was too long to be reasonable, and was not salvaged by resort to the doctrine of "substantial compliance."