2004-719, IN RE ESTATE OF CATHERINE FISCHER

court ruled that the will was properly executed. See RSA 551:2, III, IV (1997). form. See RSA 552:7 (1997). Following a hearing on the merits, the probate the probate of the will and moved for it to be reexamined and proved in solemn daughters, and Kimberly LaForge, the testatrix’s granddaughter, objected to and the petitioner’s husband. The respondent, another of the testatrix’s daughters, as her executrix and bequeathed her real propert y to the petitioner The testatrix’s will named the petitioner, Francesca Pettengill, one of her

followed. We reverse and remand. requisites for executing the will of the testatrix, Catherine Fisher, were Hillsborough County Probate Court (Cloutier, J.) ruling that the statutory GALWAY, J. The respondent, Kathleen LaForge, appeals an order of the

J. Newkirk on the brief and orally), for the respondent. Ansell, B arradale, Newkirk, Anderson & Dwyer, P.A., of Bedford (Pamela

brief and orally), for the petitioner. Schrepfer & Paradis, P.L.L.C., of Manchester (John J. A. Schrepfer on the

No. 2004 - 719 Hillsborough Cou nty Probate Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

When a testator does not have all of his faculties solely b ecause of physical could, if he had been so disposed, readily have seen them do it.” Id. at 11 p. 2 2. what the witnesses were doing when they affixed their names to his will, and all his faculties is attested in his presen ce, is to inquire whether he understood “The test to determine whether the will of a person who has the use of

exertion.” Id. even if he does not see them do it and could not without some slight physical presence, and can, if he is so disposed, readily see them write their names, . . . Healey, 73 N.H. at 111. It is sufficient that “he has knowledge of their testator need not “actually see the witnesses for them to be in his presence.” senses, and are where he can readily see them if he is so disposed.” The is conscious of where they are and of what they are doing, through any of his witnesses are in the testator’s presence “whenever they are so near him that he In Healey v. Bartlett, 73 N.H. 110, 111 (1904), we explained that

likewise did not sign it in the testatrix's presence. S ee RSA 551: p. 2 2, III. invalid because, while the petitioner executed it at the testatrix's direction, she need not address the respondent's alternative assertion that the will was in her presence. See RSA 551:2, IV. Because we agree with this argument, we although two witnesses signed it at the testatrix’s request, they did not sign it The respondent argues that the testatrix’s will is invalid because,

119 N.H. 4 p. 2 25, 426 (1979). pursuant to the requirements of RSA 551: 2 is invalid. See In re Wilson Estate, 663 (1997) (citation omitted); see RSA 552:7. A will that is not duly executed burden of proving its due execution.” In re Estate of Washburn, 141 N.H. 658, “In probate of a will in solemn form, the proponent of the will has the

testator’s signature. request of the testator and in the testator’s presence, attest to the IV. Be signed by p. 2 2 or more credible witnesses, who shall, at the express direction in his or her presence; and III. Be signed by the testato r, or by some person at his or her II. Be in writing; and I. Be made by a testator qualifying under RSA 551:1; and Requirements. To be valid, a will or codicil to a will shall:

RSA 551: p. 2 2 (1997) provides, in pertinent part:

law.” In re Estate of Treloar, 151 N.H. 460, 46 p. 2 2 (2004) (quotation omitted). unless it is unsupported by the evidence or plainly erroneous as a matter of A:4 (1997). “Consequently, we will not disturb the probate court’s decree plainly erroneous that s uch findings could not be reasonably made.” RSA 567 - “The findings of fact of the judge of probate are final unless they are so p. 3 3

her. Um, she was in, I don’t know -- it was off the kitchen, I’m not A. No, she was laying in her bed lik e she always was when I saw

where was she; was she standing, was she sitting? Q. And was [the testatrix], was she, how, where -- where was she,

guess it’s a porch, I don’t really know what they call it. A. When you’re facing th e house, it’s on the right - hand side. I

Q. Where is the porch? Now, that’s in the front, back?

A. Yeah.

Q. It was on the porch?

A. On the porch.

what specific room? Q. And do you recall that day where the will signing took place, in

the porch. As one of the witnesses testified: will in the room in which the testatrix lay in bed; rather, they signed the will on The record demonstrates, however, that the witnesses did not sign the

she wanted the witnesses to act as witnesses. in the manner she wished, if she wanted the wil l to be signed that day and if if she had read the will, if she understood the will, if it disposed of her property presence of the witnesses, the attorney asked the testatrix, among other things, that she reviewed the will with the test atrix before it was signed. Later, in the to the testatrix’s home to oversee the signing of her will. The attorney testified medications. The record shows that, on that day, the testatrix’s attorney came unable to go to the bat hroom unassisted, prepare meals or dispense her own executed, the testatrix was dying of cancer and was bedridden. She was The record shows that on November 10, 2002, when the will was

presence; this finding is plainly erroneous. See RSA 567 - A:4. the trial court’s finding that the witnesses sig ned the will in the testatrix’s Having reviewed the record, we hold that the evidence does not support

they were doing, if he had been so disposed.” Id. if it had not been for his physical infirmities, readily have seen and heard what understood what they were doing when they wrote their names, and could also, is to inquire whether he was conscious of the presence of the witnesses and infirmities, “the test to determine whether his will is attested to in his presence p. 4 4

concurre d. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

Town of Pelham, 152 N.H. 11 p. 4 4, 118 (2005). statute that the legislature did not see fit to include. Woodview Dev. Corp. v. will not consider what the legislature c ould have said or add words to the “testator,” not the testator’s attorney. We interpret the statute as written and statute. RSA 551:2, IV requires that the witnesses sign in the presence of the attorney’s presence. Such a construction contravenes the plain language of the 551:2, IV was met because the witnesses signed the will in the testatrix’s Absent citation to any binding authority, the petitioner argues that RSA

presence. See RSA 567 - A: p. 4 4. the probate court’s finding that the witnesses signed the will in the testatrix’s when they signed the will. Id. at 111. On this record, we are unable to defer to testatrix that she was conscious of where they were and what they were doing N.H. at 112. Nor was there evidence that the witnesses were “so near” to the heard” what the witnesses were doing, had she been so disposed. Healey, 73 but for the testatrix’s physical infirmities, she could have “readily . . . seen and will in the testatrix’s presence. Yet there was no evidence in the record that, The petitioner bore the burden of proving that the witnesses signed the

adjoining. house and the porch on the other, or whether the porch and living room were does not indicate, for instance, whether the living room was on one end of the there were any barriers between the living room and the porch. The record distance between the porch and the living room. Nor does it indicate whether the living room area where the testatrix was. The record does not indicate the The other witness confirmed that the wil l was signed on the porch and not in

I’m not sure what part of the house that was. sure if that was a living room or, it wasn’t, it was like two rooms,