Mississippi Supreme Court: How Do You Prove Due Execution Of a Will When the Witnesses Are Dead?

In the In the Matter of the Final Will and Testomony of Luke Beard, the Mississippi Supreme Court identified what evidence is expected to confirm the execution of a will when each the testator and the subscribing witnesses are deceased and held that in the absence of the testimony of at the very least one particular subscribing witness, a proponent of a will have to prove the handwriting of the testator and at the very least two subscribing witnesses.

The Info Of In the Make a difference of the Last Will and Testament of Luke Beard

Luke Beard executed a will on February 13, 1987. The will named Luke’s daughter, Diane Christmas, as executrix, and it remaining all of Luke’s house, which includes thirty-two acres of land, to his grandson, Antonio Christmas. Diane did not know about the will.

The will was executed by Luke and duly subscribed by Robert E. Jones, Sr., and his son Robert E. Jones, Jr., as attesting witnesses to the will’s execution.

Luke died on February 26, 2001.

Acquiring no information of the will, Diane petitioned to open up an estate on December 11, 2002. Antonio was unaware of the estate continuing. At some stage in 2003, Antonio found Luke’s will in a closet in Luke’s residence. Antonio did not inform his mom about the will and took no motion with regards to the will.

In 2017, Superior Hope, Inc., entered the land and began to reduce timber on the home. When Antonio attempted to end them, he discovered of the estate steps filed by Diane.  Antonio petitioned to probate Luke’s will. Diane contested the will and filed her objection to Antonio’s petition to probate.

At demo, Antonio testified that he was familiar with Luke’s signature and that the signature on the will was Luke’s. Diane also testified that the testator’s signature on the will “appears to be” Luke’s signature.

Both equally of the subscribing witnesses had been deceased at the time of trial.  A community legal professional testified that he was common with the signatures of both of those Jones, Sr., and Jones, Jr. He verified that the signature of Jones, Jr., on Luke’s will was legitimate. But he was not requested to and did not confirm the signature of Jones, Sr., on the will. Hence, although there was testimony relating to the signatures of Luke and Jones, Jr., there was no testimony concerning the signature of Jones, Sr.

The chancellor identified that Antonio had “fail[ed] to current expected evidence of attestation of the purported . . . will as necessary by Mississippi [l]aw” and consequently dismissed the petition. The Mississippi Court of Appeals observed that Antonio experienced introduced adequate evidence to admit Luke’s will to probate and for that reason reversed the chancellor’s choice and remanded the circumstance for even further review.  See In the Issue of the Last Will and Testament of Luke Beard.  Diane submitted a petition for writ of certiorari.

The Demands For the Legitimate Execution of a Mississippi Will

Mississippi Code Section 91-5-1 sets forth the requirements for the legitimate execution of a nonholographic will or codicil:

Each and every particular person eighteen (18) many years of age or older, currently being of seem and disposing thoughts, shall have energy, by last will and testomony, or codicil in composing, to devise all the estate, right, title and desire in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged on or issuing out of them, or goods and chattels, and private estate of any description no matter what, presented this kind of very last will and testament, or codicil, be signed by the testator or testatrix, or by some other human being in his or her presence and by his or her convey course. What’s more, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or far more credible witnesses in the existence of the testator or testatrix.

The situation in this circumstance was not just about the validity of the Mississippi will, it was about providing the thanks execution of the will just after the testator’s death.

How Do You Confirm the Thanks Execution of a Mississippi Will Immediately after Death?

Mississippi Code Area 91-7-7 gives the necessities for proving the due execution of a will:

The because of execution of the will, regardless of whether heretofore or hereafter executed, need to be proved by at minimum just one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be generated to verify the execution of the will, it might be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them. The execution of the will may be proved by affidavits of subscribing witnesses. The affidavits may perhaps be annexed to the will or may perhaps be a portion of the will, and shall state the tackle of every single subscribing witness. This sort of affidavits might be signed at the time that the will is executed.

Right here, no affidavits had been executed by the subscribing witnesses, and neither of the subscribing witnesses had been alive to testify by the time the will contest was read.

Mainly because none of the subscribing witnesses could be generated to prove the execution of the will, the due execution of the Mississippi will had to be recognized “by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them.”

In the Absence Of Testimony Of At Least One Subscribing Witness The Proponent Of the Will Ought to Prove the Handwriting Of the Testator and Two Subscribing Witnesses To Confirm Thanks Execution Underneath Mississippi Legislation

The problem for the Mississippi Supreme Court docket was whether or not “them” in the statute governing due execution of a will refers to “the subscribing witnesses” or collectively to the “testator and . . . the subscribing witnesses.”

Right after inspecting circumstance law and treatises, the Mississippi Supreme Courtroom agreed with the dissenting belief of the appellate view in this circumstance, and established that under Section 91-7-7, the phrase “or of some of them” refers to “the subscribing witnesses” and that

the far better looking through of the statute is that—in the absence of the testimony of at minimum a single subscribing witness—the proponent of the will need to confirm the 10 handwriting of the testator and at the very least two subscribing witnesses. Overlook. Code Ann. § 91-7-7. In truth, [this Court] formerly adopted this interpretation of the statute, stating that “[a]lthough less than [the statute] the testimony of only a person dwelling witness is sufficient to build a will’s appropriate execution, evidence of two signatures of witnesses is required to show owing execution in which the witnesses to a will are deceased.”

In conclusion, the Mississippi Supreme Court identified that:

The history demonstrates that Antonio proved the handwriting of the testator (Luke) and 1 of the subscribing witnesses (Jones, Jr). But Antonio unsuccessful to demonstrate the handwriting of the second subscribing witness (Jones, Sr). Because Antonio unsuccessful to prove the handwriting of at least two subscribing witnesses, the chancellor did not err by dismissing Antonio’s petition to probate the purported will.

The Mississippi Supreme Courtroom reversed the final decision of the Courtroom of Appeals, and reinstated the conclusion of the Mississippi Chancery Courtroom of Lincoln County pinpointing the the proponent did not demonstrate owing execution of the will.  This circumstance is a cautionary tale and a sturdy reminder of why a self-proving affidavit is a excellent notion when executing a will.