Standard of Review Bench Verdict on Stipulated Facts - Will Execution


McElroy v. McElroy, [Ms. 1190888, Nov. 20, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Sellers, J.; Wise and Stewart, JJ., concur; Parker, C.J., and Bolin, J., concur in the result) affirms the Jefferson Probate Court’s order rejecting the contestants’ challenge to the will of Clifton McElroy.

The Jefferson Circuit Court conducted a three-day bench trial and determined 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, Ala. Code 1975.” Ms. *3. However, because the estate had not been properly removed, the circuit court’s judgment was declared void on appeal. After remand, the parties stipulated that the probate court try the will contest “solely on written materials, including the transcript of the bench trial in the circuit court….” Ms. *4.

Consequently, the probate court’s subsequent judgment declaring the will valid does not enjoy a presumption of correctness on appeal. Instead, the Supreme Court “weighs and considers the evidence de novo, without according any presumption of correctness to the probate court’s findings of fact. See § 12-2-7(1), Ala. Code 1975 (‘[I]n deciding appeals, no weight shall be given the decision of the trial judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.’); see also Ex parte Sacred Heart Health Sys., Inc., 155 So. 3d 980, 985 (Ala. 2012)(citing § 12-2-7(1) and stating that, in a case in which a trial court has not heard live testimony, the reviewing court will not apply a presumption of correctness to a trial court’s findings of fact; rather, the reviewing court reviews the evidence de novo); and Dombrowski Living Tr. v. Morgantown Prop. Owners Ass’n, Inc., 229 So. 3d 239 (Ala. Civ. App. 2016). Ms. *8.

The Court affirms the validity of the will, explaining

For a will to be admitted to probate, § 43-8-131 requires (1) that the will be in writing and (2) that it be signed by the testator or by someone in the testator’s presence and at his direction. See generally Pickens v. Estate of Fenn, 251 So. 3d 34 (Ala. 2017). In this case, it is undisputed that the will is in writing, and Tracy testified that, at Clifton’s direction, she signed his name on the will while she was in his presence. Therefore, the first two requirements of the statute were satisfied; contrary to the contestants’ assertion, the statute does not require that Clifton acknowledge, either orally or through a notation on the will, that he directed Tracy to sign his name on the will. The statute then requires (3) 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. Id. In other words, it is the attestation of the subscribing witnesses that gives effect to the instrument as a valid will. See Culver v. King, 362 So. 2d 221, 222 (Ala. 1978)(noting that the purpose of requiring the signature of two witnesses “is to remove uncertainty as to the execution of wills and safeguard testators against frauds and impositions”).

Jackson, one of the subscribing witnesses, did not witness Clifton sign the will. However, the Court holds “although it may have been the better practice for Clifton to expressly acknowledge to Jackson that the document was testamentary in nature, the mere fact that he did not make such an express statement is insufficient to defeat the admission of the will to probate. 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.” Ms. *12.

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