In re Estate of Anna M. Hafey

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0644, In re Estate of Anna M. Hafey, the court on January 23, 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). In this interlocutory appeal, the petitioner, Carolyn F. Foley as the executrix of the Estate of Anna M. Hafey, challenges a decision of the Circuit Court (Weaver, J.) ruling that the will of Anna M. Hafey is not valid under RSA 551:2 and ordering that the estate proceed intestate. See RSA 551:2 (Supp. 2024); Sup. Ct. R. 8. The dispositive interlocutory questions presented are whether the trial court erred as a matter of law when it ruled: (1)

"that the will was not signed by two witnesses as required by RSA 551:2"; and

(2) "that the will is not allowed." (Quotations and brackets omitted.) We answer both questions in the negative and, therefore, affirm and remand. We accept the statement of the case and the facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, 364 (2022). The decedent died in October 2022, leaving a 2005 will that named her niece, Carolyn F. Foley, as the executrix. The decedent signed the will before a notary. The notary's acknowledgment and affidavit for self-proving will, see RSA 551:2-a (2019), identified two witnesses by name who were also present at the will signing.

The will consists of three pages: pages one and two contain the substantive provisions of the will and pages two and three contain the notary's acknowledgment and affidavit for self-proving will. The decedent signed her name on the second page of the will on a line designated for her following the end of the substantive provisions of the will. The notary signed her name on the third page of the will on a line designated for the notary following the acknowledgement and affidavit for self-proving will. The will contains no signature lines designated for the witnesses and neither witness wrote her name anywhere on the will; however, both witnesses initialed all three pages of the will.

In January 2023, the petitioner filed a petition for estate administration in the circuit court and represented that the decedent had a will. The circuit court stayed the petition pending proof of the will. In response, the two

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witnesses each filed a "deposition in proof of will." (Bolding and capitalization omitted.) The witnesses testified in their depositions that "[t]he signature line for witnesses was inadvertently omitted in the drafting of the document" and that neither witness signed her name on the will.

Based on the depositions in proof of will, the circuit court determined that "[t]he witnesses did not sign the Will as required by RSA 551:2" and directed that the estate proceed intestate. The petitioner moved to reconsider and requested a hearing. At the hearing, counsel for the petitioner presented an offer of proof on behalf of one of the witnesses to the will and the court questioned that same witness.

The trial court subsequently denied the motion to reconsider. It found

"that the witnesses did not intend their initials to be their signatures" and that

"the initials appear to be [on the will] solely to show that there were three pages seen by the witnesses." Accordingly, the court concluded that "the will was not 'signed' by two witnesses as required by RSA 551:2," and, therefore, the will was "not allowed" and the estate must proceed intestate. This interlocutory appeal followed. See Sup. Ct. R. 8. There is no evidence in the record that another party or interested individual challenged the validity of the will in the circuit court, and the petitioner is unopposed on appeal.

Our standard of review of a circuit court probate division decision is established by statute: "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567-A:4 (2019). Consequently, we will not disturb the probate division's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. In re Estate of Fischer, 152 N.H. 669, 670 (2005). RSA 551:2, I, provides:

I. To be valid, a will or codicil to a will shall:

(a) Be made by a testator qualifying under RSA 551:1; and

(b) Be in writing; and

(c) Be signed by the testator, or by some person at his or her express direction in his or her presence; and

(d) Be 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.

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(Emphasis added.) "A will that is not duly executed pursuant to the requirements of RSA 551:2 is invalid." Fischer, 152 N.H. at 671. The petitioner argues that the trial court erred when it determined that the witnesses' initials on the will did not satisfy RSA 551:2, I(d). She asserts that, under the plain language of the statute, a witness is not required to write her full name on the will and, instead, can "sign" by affixing a mark such as her initials. For the purposes of this appeal, we assume without deciding that this interpretation of RSA 551:2, I(d) is correct — that is, that the writing of initials on the will by two witnesses can satisfy the requirement that the will be

"signed by" two or more credible witnesses. RSA 551:2, I(d). The trial court appears to have agreed with the petitioner's interpretation of the statute in this respect as it did not invalidate the will based solely upon the witnesses' writing of initials rather than names.

Nevertheless, the trial court concluded that the will was not "signed" by two witnesses as required by the statute because it found that "the witnesses did not intend their initials to be their signatures." The petitioner argues that the trial court erred by "prioritizing whether the witnesses intended to sign their initials as their 'signature[s]'" rather than focusing on their "purpose for signing," which she asserts was "to affirm and attest to the testator signing the will." (Bolding and capitalization omitted.) She contends that the trial court's analysis "added an additional element" — proof of the witnesses' intent when writing their initials — "to the statute." We are unpersuaded. When determining the validity of a purported signature, we have, under some circumstances, examined evidence beyond the four corners of the document at issue. See Willoughby v. Moulton, 47 N.H. 205, 206-07 (1866) (explaining that proof that note was properly executed by mark can be shown by testimony of signor that the mark was "his true signature," testimony of an attesting witness to the mark, or testimony of a person who observed the signor execute documents by mark on other occasions). In the context of witness attestation, this proof includes extrinsic evidence bearing upon the witness's intent when signing. See Lord v. Lord, 58 N.H. 7, 9-10 (1876); Tilton v. Daniels, 79 N.H. 368, 369-70 (1920). For instance, in Lord, decided under a prior but similar version of the statutory witness attestation requirement, we rejected a claim that a will was not validly attested because one of the witnesses, who was unable to write, directed her husband to write her name on the will as a witness. Lord, 58 N.H. at 9-10. In upholding the will as validly attested, we considered the circumstances under which the witness directed her husband to sign for her and emphasized that her intention in directing him to do so was "material." Id. at 9. Accordingly, we are not convinced that the trial court erred by considering the witnesses' intent when writing their initials on the will.

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Here, the trial court found that the witnesses did not "intend their initials to be their signatures"; instead, they affixed their initials to demonstrate that they had seen each of the three pages of the will. The record, including the will itself, supports the trial court's finding. The witnesses initialed every page of the will, not just the page on which the decedent's signature appears. They also initialed each of the three pages in approximately the same place — in the left-hand margin, approximately halfway down the page. They did not, for example, place their initials on the second page directly next to or underneath the decedent's signature where a witness attestation clause would ordinarily appear. See 7 Charles A. DeGrandpre, New Hampshire Practice: Wills, Trusts and Gifts Appendix of Forms and Checklists, at 85-92 (4th ed. Supp. 2024) (providing examples of a simple will and a self-proving will). Additionally, in their depositions in proof of will, the witnesses each testified that the "signature line for witnesses was inadvertently omitted in the drafting of the document" and that they did not sign their names as witnesses. Critically, at the hearing on the motion to reconsider, the trial court questioned the witness to the will who appeared at the hearing: "The question becomes whether the witnesses intended [their initials] to be their signatures or they intended [their initials] to be their initials, indicating that each page was viewed by the testator and presumably themselves. Do you recall?" The witness responded: "I don't recall. It is customary to initial . . . each page."

Viewing this testimony in light of the other evidence, the trial court could reasonably conclude that the witnesses initialed each page as a matter of course to show that they viewed all three pages and, consequently, did not intend their initials to be their signatures. We therefore cannot conclude that the trial court's ruling was "unsupported by the evidence or plainly erroneous as a matter of law." Fischer, 152 N.H. at 670 (quotation omitted). Finally, citing case law from other states, the amicus curiae urges us to adopt "a doctrine of substantial compliance with regard to witness signatures."

See, e.g., Matter of Will of Ranney, 589 A.2d 1339, 1345 (N.J. 1991) (adopting substantial compliance rule that permits probate of will containing formal defects if the proponent of the will proves "by clear and convincing evidence that the will substantially complies with statutory requirements"). At this time, we decline the invitation to adopt this doctrine.

In sum, the petitioner has not persuaded us that the trial court erred when it concluded that the will was not "signed" by two witnesses as required by RSA 551:2, I(d) and therefore was not validly executed. Because the will was not duly executed pursuant to RSA 551:2, I, the trial court did not err when it ruled that the will was "not allowed" and ordered that the estate proceed intestate. See Fischer, 152 N.H. at 671. We answer the two dispositive

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interlocutory questions in the negative, affirm the trial court's ruling, and remand for further proceedings consistent with this order. Affirmed and remanded.

MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ., concurred.

Timothy A. Gudas, Clerk