Self-Proving Will - Ala. Code § 43-8-132 - Trial of Issues by Implied Consent


Rothwell v. Molitor, et al., [Ms. 2180845, Dec. 13, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Moore, J.; Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur) reverses a judgment of the Madison Circuit Court sustaining the validity of the Last Will and Testament of Lilly Molitor.

Section 43-8-132, Ala. Code 1975, providing the method for making a will self-proving, “is an innovation on the common law, [and] it should be strictly construed.” Ms. *9, quoting Morrow v. Helms, 873 So. 2d 1132, 1138 (Ala. Civ. App. 2001) (Murdock, J., concurring in the result). Lilly’s will was not self-proving under § 43-8-132 because “the notary did not, in fact, acknowledge the signature of the testator as required by § 43-8-132.” Ms. *9. Further, because the proponents of the will did not offer testimony from either of the two witnesses to the will, the proper execution of the will was not proved through the methods set out in § 43-8-167. Ms. *10-11.

Although the petition did not contest Lilly’s proper execution of the will, that issue was tried by implied consent pursuant to Rule 15, Ala. R. Civ. P., as a result of the proponents’ failure to object to evidence concerning the error in the notary acknowledgment. Ms. *6.

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