PROPER EXECUTION OF A WILL: PICKENS V. ESTATE OF DONALD HARRISON FENN
Pickens v. Estate of Donald Harrison Fenn, [Ms. 1160202, Sept. 29, 2017] __ So. 3d __ (Ala. 2017). In this decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur; Murdock, J. concurs in the rationale in part and concurs in the result; Shaw, J., concurs in the result), the Court reverses an order of the Elmore probate court denying admission to probate of a will signed by Donald Fenn. The Elmore court had concluded that the will was not signed by at least two witnesses as required by § 43-8-31, Ala. Code 1975.
The witness Causey testified that she witnessed the testator signing the will and witnessed the notary notarize the document. Ms. *4. The Court noted that § 43-8-131 “requires that a will be signed by at least two persons who witnessed the testator performing one of three acts: signing the will, acknowledging the document as his will, or acknowledging his signature on the will.” Ms. *7 (emphasis in the original). The Court reversed the order denying admission of the will to probate concluding
There is simply nothing in the statute that would prohibit a notary public from serving as a witness. Indeed, the fact that Ingram signed the will in her capacity as a notary public is immaterial to her qualification to serve as a witness to the will because § 43-8-131 does not require the signatures of the testators or the witnesses be notarized. The important fact here is not the capacity in which Ingram executed the document, i.e., as a notary public, but rather that she observed Fenn’s signing of the document and affixed her signature thereto.