Mississippi Supreme Court: How Do You Prove Due Execution Of a Will When the Witnesses Are Dead?6 min read
In the In the Subject of the Past Will and Testomony of Luke Beard, the Mississippi Supreme Court established what evidence is essential to establish the execution of a will when the two the testator and the subscribing witnesses are deceased and held that in the absence of the testimony of at least just one subscribing witness, a proponent of a will have to demonstrate the handwriting of the testator and at minimum two subscribing witnesses.
The Info Of In the Subject of the Previous Will and Testament of Luke Beard
Luke Beard executed a will on February 13, 1987. The will named Luke’s daughter, Diane Xmas, as executrix, and it remaining all of Luke’s property, including 30-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.
Owning no know-how of the will, Diane petitioned to open up an estate on December 11, 2002. Antonio was unaware of the estate proceeding. At some place in 2003, Antonio located Luke’s will in a closet in Luke’s household. Antonio did not inform his mom about the will and took no action concerning the will.
In 2017, Great Hope, Inc., entered the land and begun to minimize timber on the house. When Antonio tried to prevent them, he acquired 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 common 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.
Each of the subscribing witnesses were deceased at the time of demo. A neighborhood legal professional testified that he was familiar with the signatures of the two Jones, Sr., and Jones, Jr. He verified that the signature of Jones, Jr., on Luke’s will was real. But he was not questioned to and did not verify the signature of Jones, Sr., on the will. As a result, whilst there was testimony relating to the signatures of Luke and Jones, Jr., there was no testimony with regards to the signature of Jones, Sr.
The chancellor uncovered that Antonio had “fail[ed] to current necessary evidence of attestation of the purported . . . will as demanded by Mississippi [l]aw” and as a result dismissed the petition. The Mississippi Court of Appeals observed that Antonio experienced presented adequate evidence to confess Luke’s will to probate and for that reason reversed the chancellor’s choice and remanded the situation for additional critique. See In the Make any difference of the Past Will and Testomony of Luke Beard. Diane submitted a petition for writ of certiorari.
The Necessities For the Valid Execution of a Mississippi Will
Mississippi Code Portion 91-5-1 sets forth the necessities for the legitimate execution of a nonholographic will or codicil:
Every single person eighteen (18) decades of age or more mature, staying of audio and disposing head, shall have energy, by previous will and testomony, or codicil in writing, to devise all the estate, suitable, title and curiosity in possession, reversion, or remainder, which he or she hath, or at the time of his or her demise shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents billed upon or issuing out of them, or merchandise and chattels, and private estate of any description whichever, provided this kind of last will and testament, or codicil, be signed by the testator or testatrix, or by some other individual in his or her presence and by his or her specific way. In addition, if not wholly penned 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 difficulty in this situation was not just about the validity of the Mississippi will, it was about giving the because of execution of the will just after the testator’s dying.
How Do You Show the Thanks Execution of a Mississippi Will Following Dying?
Mississippi Code Part 91-7-7 presents the necessities for proving the due execution of a will:
The due execution of the will, no matter whether heretofore or hereafter executed, will have to be proved by at the very least one (1) of the subscribing witnesses, if alive and skilled to testify. If none of the subscribing witnesses can be generated to establish the execution of the will, it may perhaps be set up 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 might be proved by affidavits of subscribing witnesses. The affidavits may possibly be annexed to the will or could be a aspect of the will, and shall condition the handle of every single subscribing witness. Such affidavits may possibly be signed at the time that the will is executed.
In this article, no affidavits experienced been executed by the subscribing witnesses, and neither of the subscribing witnesses were alive to testify by the time the will contest was listened to.
For the reason that none of the subscribing witnesses could be made to establish the execution of the will, the due execution of the Mississippi will had to be founded “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 Minimum Just one Subscribing Witness The Proponent Of the Will Ought to Prove the Handwriting Of the Testator and Two Subscribing Witnesses To Prove Due Execution Less than Mississippi Legislation
The problem for the Mississippi Supreme Court was whether “them” in the statute governing thanks execution of a will refers to “the subscribing witnesses” or collectively to the “testator and . . . the subscribing witnesses.”
Right after analyzing situation regulation and treatises, the Mississippi Supreme Court agreed with the dissenting opinion of the appellate impression in this scenario, and determined that beneath Area 91-7-7, the phrase “or of some of them” refers to “the subscribing witnesses” and that
the superior reading of the statute is that—in the absence of the testimony of at the very least one particular subscribing witness—the proponent of the will ought to confirm the 10 handwriting of the testator and at the very least two subscribing witnesses. Pass up. Code Ann. § 91-7-7. Without a doubt, [this Court] previously adopted this interpretation of the statute, stating that “[a]lthough beneath [the statute] the testimony of only one living witness is adequate to create a will’s right execution, evidence of two signatures of witnesses is expected to establish because of execution where the witnesses to a will are deceased.”
In conclusion, the Mississippi Supreme Court determined that:
The history reflects that Antonio proved the handwriting of the testator (Luke) and 1 of the subscribing witnesses (Jones, Jr). But Antonio failed to show the handwriting of the second subscribing witness (Jones, Sr). Simply because Antonio unsuccessful to establish the handwriting of at the very 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 Court of Appeals, and reinstated the selection of the Mississippi Chancery Court docket of Lincoln County analyzing the the proponent did not establish because of execution of the will. This situation is a cautionary tale and a solid reminder of why a self-proving affidavit is a superior thought when executing a will.