1. Introduction

This probate appeal arose from an attempted probate of Anna M. Hafey’s 2005 will. The petitioner, Carolyn F. Foley (as executrix), sought to administer the estate under the will. The Circuit Court (Weaver, J.) ruled the will invalid under RSA 551:2 because it was not “signed by 2 or more credible witnesses” and directed the estate to proceed intestate.

The critical factual wrinkle was formal rather than substantive: although two witnesses were present at execution, neither wrote her name anywhere on the will. Instead, both witnesses initialed each page. The will also contained a notary’s acknowledgment and an affidavit for a self-proving will under RSA 551:2-a, identifying the two witnesses by name.

The Supreme Court accepted two dispositive interlocutory questions: whether the trial court erred as a matter of law in concluding (1) the will was not signed by two witnesses as required by RSA 551:2, and (2) the will was “not allowed,” requiring intestacy. The Supreme Court answered both questions “in the negative,” affirming invalidity and remanding.

2. Summary of the Opinion

The Supreme Court held that the Circuit Court did not err in concluding the will was not validly executed under RSA 551:2 because the two witnesses’ initials were not shown to be intended as their signatures. Even assuming (without deciding) that initials can constitute a witness “signature” under the statute, the decisive point was the probate court’s supported factual finding that the witnesses intended their initials only to indicate they had viewed each page, not to sign as attesting witnesses.

The Court further declined an amicus invitation to adopt a “substantial compliance” doctrine that would allow probate despite formal defects where testamentary intent and near-compliance are shown by clear and convincing evidence.

3. Analysis

A. Precedents Cited

• In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, 364 (2022)
  Cited for the Court’s practice of accepting the statement of case and facts presented in the interlocutory appeal statement while relying on the record for additional facts as needed. This citation framed the appellate lens: the Court was not reconstructing a full trial record but reviewing an interlocutory package and the existing probate record.
• In re Estate of Fischer, 152 N.H. 669, 670-71 (2005)
  Fischer supplied two key pillars: (1) the standard for disturbing a probate decree (unsupported by the evidence or plainly erroneous as a matter of law), and (2) the core rule that “[a] will that is not duly executed pursuant to the requirements of RSA 551:2 is invalid.” The Hafey order repeatedly used Fischer to anchor both deference to factfinding and the consequence of noncompliance: the will is “not allowed.”
• Willoughby v. Moulton, 47 N.H. 205, 206-07 (1866)
  Willoughby was invoked to show that determining whether a mark is a valid signature can, in appropriate circumstances, require evidence beyond the document’s four corners—e.g., testimony that the mark was intended as the signor’s “true signature.” Hafey borrows this evidentiary approach to treat “signature” as a mixed question where intent can matter and can be proven extrinsically.
• Lord v. Lord, 58 N.H. 7, 9-10 (1876)
  Lord directly supported the relevance of witness intent in the attestation context. There, under a “prior but similar” statutory requirement, a witness unable to write had her name written by her husband at her direction. The Court upheld the attestation, emphasizing that the witness’s intention in directing another to sign was “material.” Hafey uses Lord to rebut the petitioner’s contention that the trial court “added an additional element” by considering intent: New Hampshire has long treated the witness’s intention as part of whether the statutory “signature” requirement is satisfied.
• Tilton v. Daniels, 79 N.H. 368, 369-70 (1920)
  Tilton reinforced the same point as Lord: extrinsic evidence bearing upon a witness’s intent when signing may be considered when evaluating witness attestation. Hafey cites Tilton alongside Lord to demonstrate continuity in doctrine, not a new evidentiary gloss.
• Matter of Will of Ranney, 589 A.2d 1339, 1345 (N.J. 1991)
  Not relied upon as authority to change New Hampshire law, but cited as an example of another state’s adoption of substantial compliance. The Court acknowledged the doctrine urged by amicus and expressly declined to adopt it “at this time,” signaling that formal execution rules remain controlling in New Hampshire absent legislative change or future doctrinal development.

B. Legal Reasoning

The decision turns on how the Court combined (i) the statutory execution mandate, (ii) deference to probate factfinding, and (iii) the role of intent in determining whether a “signature” exists for purposes of witness attestation.

1. Statutory baseline: strict execution requirements.
   RSA 551:2, I(d) requires that a will “[b]e signed by 2 or more credible witnesses, who shall, at the request of the testator and in the testator’s presence, attest to the testator’s signature.” The Court reiterated (via Fischer) that a will not “duly executed pursuant to” RSA 551:2 is invalid. This frames the inquiry as compliance with formalities, not overall fairness or probable intent.
2. Assumption (without decision): initials can sometimes qualify as a witness signature.
   The petitioner argued that the statute does not require writing a full name and that “sign” includes a mark such as initials. The Court assumed this legal proposition for the appeal, avoiding a categorical ruling on whether initials are always sufficient. This move narrowed the dispute: even if initials can be a signature, these initials were not a signature on these facts.
3. Intent as part of “signature” validity for witness attestation.
   The petitioner’s main legal attack was that the probate court improperly “prioritized” whether the witnesses intended their initials as signatures, thereby adding a statutory element. The Supreme Court rejected that framing by pointing to New Hampshire authority allowing consideration of extrinsic evidence when assessing whether a mark constitutes a valid signature (Willoughby v. Moulton) and, specifically for will witnesses, treating the witness’s intention as “material” (Lord v. Lord; Tilton v. Daniels). In other words, “signature” is not purely the physical presence of ink on paper; it is the adoption of the mark as a signing act for the relevant legal purpose.
4. Deference to probate factfinding under RSA 567-A:4.
   The standard of review mattered: the Court would not disturb fact findings unless “so plainly erroneous that such findings could not be reasonably made” (RSA 567-A:4), and would affirm unless unsupported by evidence or plainly erroneous as a matter of law (Fischer). This deference was decisive because the Circuit Court made a factual finding about intent: the witnesses did not intend their initials to be signatures.
5. Record support for the finding of no intent to sign as witnesses.
   The Court highlighted multiple corroborating facts:
   • The witnesses initialed every page, not only the page containing the testator’s signature.
   • The initials appeared in a consistent “left-hand margin” location, suggestive of page review rather than attestation.
   • The initials were not placed near the testator’s signature where an attestation clause would ordinarily appear.
   • Both “deposition in proof of will” filings stated a “signature line for witnesses was inadvertently omitted” and that neither witness signed her name.
   • At the reconsideration hearing, a witness stated it is customary to initial each page and did not recall intending initials as signatures.
   From this, the Supreme Court concluded the probate court could reasonably find the initials were placed to show the pages were seen, not to execute a witness signature.
6. Refusal to adopt substantial compliance.
   Amicus urged adoption of a doctrine that would excuse formal defects where the proponent proves substantial compliance (citing Matter of Will of Ranney). The Court declined “at this time.” The practical consequence is that, absent legislative reform (e.g., a harmless-error statute) or a future doctrinal shift, New Hampshire wills remain governed by formal execution compliance rather than equitable rescue doctrines.

C. Impact

• Drafting and execution practice in New Hampshire.
  The decision underscores that a self-proving affidavit and notarial acknowledgment under RSA 551:2-a do not substitute for the witness-signature requirement of RSA 551:2, I(d). Practitioners should ensure: (i) a clear witness attestation section, (ii) signature lines for each witness, and (iii) witnesses sign in the customary location tied to attestation, not merely initial pages.
• Litigation focus: intent evidence becomes pivotal when the “signature” is nontraditional.
  Where wills use marks, initials, or other nonstandard signing practices, Hafey signals that courts will examine context: placement, customary execution cues, witness testimony, and any contemporaneous statements about what the mark was meant to accomplish. The case thus encourages meticulous execution ceremonies and contemporaneous documentation.
• Limits on equitable validation.
  By declining substantial compliance, the Court reaffirmed that formal defects in witness execution can be fatal even when there appears to be testamentary intent and a notary plus self-proving language. This maintains predictability but increases the stakes of minor drafting/execution mistakes.
• Standard-of-review realities in probate appeals.
  Hafey illustrates that once the probate court makes a supported factual finding on intent, overturning that finding is difficult under RSA 567-A:4. Appellate strategy must therefore focus heavily on developing a clear factual record in the probate division.

4. Complex Concepts Simplified

• “Attestation” and “witness signature” (RSA 551:2, I(d)).
  Attestation is the act by which witnesses confirm they observed the testator sign (or acknowledge a signature) and that the formalities were met. The statute requires witnesses to “sign” and “attest” in the testator’s presence and at the testator’s request. A scribble, mark, or initials may sometimes serve as a signature, but only if the witness adopts it as a signing act for attestation.
• “Self-proving will” (RSA 551:2-a).
  A self-proving affidavit typically streamlines probate by providing sworn statements (often notarized) that execution formalities occurred, reducing the need to later locate witnesses. Hafey demonstrates that self-proving paperwork does not cure a missing statutory element (here, witness signatures on the will itself as required by RSA 551:2).
• “Intestacy.”
  If a will is “not allowed” (denied probate) due to invalid execution, the estate is distributed under intestacy statutes—default rules that apply when there is no valid will. In Hafey, invalid execution meant the decedent’s expressed plan in the 2005 document could not be implemented.
• “Interlocutory appeal.”
  This is an appeal taken before the case fully ends in the trial court, typically to resolve controlling legal questions that materially affect the case’s outcome. Here, the validity of the will was dispositive, so it was appropriate for interlocutory review.
• “Substantial compliance” vs. strict compliance.
  Substantial compliance doctrines permit courts to excuse certain formal defects if the proponent proves the document functionally meets the statute’s purposes. New Hampshire, in Hafey, declined to adopt such a doctrine for witness signatures, leaving strict compliance with RSA 551:2 as the governing approach.

5. Conclusion

In re Estate of Anna M. Hafey reinforces a formal-execution regime for New Hampshire wills: the witness-signature requirement in RSA 551:2, I(d) is not satisfied by witness initials when the probate court reasonably finds those initials were not intended as attesting signatures. The Court confirmed that extrinsic evidence—including witness testimony and execution context—may be used to assess whether a mark constitutes a “signature,” drawing on Willoughby v. Moulton, Lord v. Lord, and Tilton v. Daniels.

The Court also declined to adopt a substantial compliance doctrine, preserving strict adherence to statutory formalities and signaling that cures for execution defects, if any, are for future cases or legislative action. For practitioners, Hafey is a cautionary precedent: ensure witnesses clearly sign as witnesses (not merely initial pages), and do not assume a self-proving affidavit can salvage an execution omission.