Alabama Supreme Court: How To Prove Proper Execution Of a Will

In the November 2020 opinion of McElroy v. Estate of McElroy, the Alabama Supreme Court reviewed the basics of how to make a valid will, and how to prove the proper execution of a will that is not-self proving.  In this case, the will contestants challenged the validity of the will on the basis of fraud.

The Facts of McElroy v. Estate of McElroy

Decedent died in 2010, leaving an October 15, 2008 will.  Shortly after his death, Tracy, Decedent’s daughter, petitioned the Alabama probate court to admit the will to probate.  Tracy averred that the will was self-proving in accordance with § 43-8-132, Ala. Code 1975.  The probate court admitted the will to probate and issued letters testamentary to Tracy.

Tomeka and Marlon, Decedent’s son and daughter (the “Will Contestants”), filed a will contest, alleging that Decedent’s signature on the will was forged, and that therefore the will was not properly executed under Alabama law.

After a three-day bench trial on the will contest in circuit court, the court entered a judgment finding that, although the will did not meet the requirements of a self-proving will under § 43-8-132, it was properly executed and witnessed and was, therefore, valid under § 43-8-131.  After an appeal was initiated, it was determined that the case was not properly removed from probate to circuit court, and that the circuit court never obtained subject-matter jurisdiction over the estate administration or the will contest.

A new trial was ordered.  The parties agreed that in lieu of another bench trial the probate court would base its ruling regarding the validity of the will on written materials, including the transcript of the bench trial in the circuit court.

The transcript indicated that:

  • The will was not signed by Decedent, but was signed by Tracy. Tracy testified that she signed the will at Decedent’s direction and in his presence.
  • Tomeka testified that Decedent said, in the months before his death, that he did not have a will and wanted his estate divided evenly among his four children.
  • Willie Jackson, one of the subscribing witnesses, testified that he signed a document in Decedent’s presence, does not recall if Decedent’s signature was on the document when he signed, and that he read the paragraph above the signature line which stated that the document was a will before he signed.
  • Juandalynn Givan, an attorney, testified that she prepared Decedent’s will in accordance with Decedent’s instructions, and that she delivered it to Decedent. An executed copy of the will was returned to her, and she kept it in her files.
  • Gloria Patrick, the notary public, testified that she notarized the will at Decedent’s house, and asked Decedent if the signature on the will was his. He said it was.

Proper Execution Of an Alabama Will

We have previously written about how to properly execute a will under Alabama law. To be valid under Alabama law, section 43-8-131 requires:

[E]very will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.

Here, the Will Contestants argued that the will was not properly executed under § 43-8-131 of the Alabama Code because Decedent failed to acknowledge to a witness that he had directed Tracy to sign his name on the will.

Does A Testator Have To Note On the Will That He Directed Someone To Sign His Name?

No.  There is no requirement under Alabama law requiring a testator to make any representation to a witness other than to indicate the document is his or her will and to ask the witness to sign it.  There is no requirement that the Decedent acknowledge that he directed someone to sign his name.

How Do You Prove Proper Execution of A Will That Is Not Self-Proving Under Alabama Law?

Section 43-8-167 of the Alabama Code sets forth the requirements for proving the proper execution of a will that is not self-proved.  Section 43-8-167 provides:

(a) Wills offered for probate, except nuncupative wills, must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.

Here, the will was in writing, signed by someone in the testator’s presence and at his direction.  The third requirement is subscribing witnesses who witnessed the testator performing one of three acts:

  1. Signing the will
  2. Acknowledging the document as his will
  3. Acknowledging his signature on the will

Here, Jackson, a subscribing witness, did not witness the execution of the will by the Alabama decedent, and could not recall if decedent had signed the will prior to Jackson’s signature.  The will would nonetheless be valid if Decedent acknowledged to Jackson hat the document Jackson was witnessing was a will.  Jackson testified that before signing, he read the paragraph above the signature line which acknowledged that the document was Decedent’s will.

The Alabama Supreme court found this sufficient, stating:

Recognizing that the intent of § 43-8- 131 is to provide minimum statutory formalities for a valid will, we conclude that Jackson’s testimony, i.e., acknowledging that the page he signed was clearly marked as Clifton’s will, satisfies the statutory requirements of §§ 43-8-131 and 43-8-167.  Our conclusion is further bolstered by the additional evidence surrounding the execution of the will and, specifically, the fact that the will was prepared by Clifton’s attorney at Clifton’s request and in accordance with his instructions and the fact that the will was acknowledged by a notary public, which is sufficient to meet the statutory requirements of a witness. The totality of these circumstances strongly suggest that the will was validly executed and was not procured by fraud. To conclude otherwise would frustrate, rather than further, the intent of § 43-8-131, which provides the minimum formalities for a valid will.

The Alabama Supreme Court adhered to the policy of upholding the validity of the execution of a will when possible, to give effect to a testator’s intent.

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