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

In the In the Matter of the Last Will and Testament of Luke Beard, the Mississippi Supreme Court determined what evidence is required to prove the execution of a will when both the testator and the subscribing witnesses are deceased and held that in the absence of the testimony of at least one subscribing witness, a proponent of a will must prove the handwriting of the testator and at least two subscribing witnesses.

The Facts Of In the Matter 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 left all of Luke’s property, including 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.

Having no knowledge of the will, Diane petitioned to open an estate on December 11, 2002. Antonio was unaware of the estate proceeding. At some point in 2003, Antonio found Luke’s will in a closet in Luke’s house. Antonio did not tell his mother about the will and took no action regarding the will.

In 2017, Good Hope, Inc., entered the land and started to cut timber on the property. When Antonio attempted to stop them, he learned of the estate actions 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 trial, 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 of the subscribing witnesses were deceased at the time of trial.  A local attorney testified that he was familiar with the signatures of both Jones, Sr., and Jones, Jr. He verified that the signature of Jones, Jr., on Luke’s will was genuine. But he was not asked to and did not verify the signature of Jones, Sr., on the will. Thus, while there was testimony regarding the signatures of Luke and Jones, Jr., there was no testimony regarding the signature of Jones, Sr.

The chancellor found that Antonio had “fail[ed] to present required evidence of attestation of the purported . . . will as required by Mississippi [l]aw” and therefore dismissed the petition. The Mississippi Court of Appeals found that Antonio had presented sufficient evidence to admit Luke’s will to probate and therefore reversed the chancellor’s decision and remanded the case for further review.  See In the Matter of the Last Will and Testament of Luke Beard.  Diane filed a petition for writ of certiorari.

The Requirements For the Valid Execution of a Mississippi Will

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

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest 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 upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

The issue in this case was not just about the validity of the Mississippi will, it was about providing the due execution of the will after the testator’s death.

How Do You Prove the Due Execution of a Mississippi Will After Death?

Mississippi Code Section 91-7-7 provides the requirements for proving the due execution of a will:

The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may 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 be annexed to the will or may be a part of the will, and shall state the address of each subscribing witness. Such affidavits may be signed at the time that the will is executed.

Here, no affidavits had been executed by the subscribing witnesses, and neither of the subscribing witnesses were alive to testify by the time the will contest was heard.

Because none of the subscribing witnesses could be produced to prove the execution of the will, the due execution of the Mississippi will had to be established “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 Must Prove the Handwriting Of the Testator and Two Subscribing Witnesses To Prove Due Execution Under Mississippi Law

The issue for the Mississippi Supreme Court was whether “them” in the statute governing due execution of a will refers to “the subscribing witnesses” or collectively to the “testator and . . . the subscribing witnesses.”

After examining case law and treatises, the Mississippi Supreme Court agreed with the dissenting opinion of the appellate opinion in this case, and determined that under Section 91-7-7, the phrase “or of some of them” refers to “the subscribing witnesses” and that

the better reading of the statute is that—in the absence of the testimony of at least one subscribing witness—the proponent of the will must prove the 10 handwriting of the testator and at least two subscribing witnesses. Miss. Code Ann. § 91-7-7. Indeed, [this Court] previously adopted this interpretation of the statute, stating that “[a]lthough under [the statute] the testimony of only one living witness is sufficient to establish a will’s proper execution, proof of two signatures of witnesses is required to prove due execution where the witnesses to a will are deceased.”

In conclusion, the Mississippi Supreme Court determined that:

The record reflects that Antonio proved the handwriting of the testator (Luke) and one of the subscribing witnesses (Jones, Jr). But Antonio failed to prove the handwriting of the second subscribing witness (Jones, Sr). Because Antonio failed 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 Court reversed the decision of the Court of Appeals, and reinstated the decision of the Mississippi Chancery Court of Lincoln County determining the the proponent did not prove due execution of the will.  This case is a cautionary tale and a strong reminder of why a self-proving affidavit is a good idea when executing a will.