The Better Chancery Practice Blog

By: Donald E. Campbell

Michael E. Roberts died on December 19, 2016. Believing that he died intestate, Teresa Herd – the mother of Michael’s child – sought to open an estate appointing herself as administrator. Thereafter, Bryan Williams (Michael’s nephew), intervened claiming that a 2001 will (which named Bryan as a beneficiary and executor) was Michael’s true will. Michael’s brother and sister (Keith and Gloria) brought forward a 2016 will which they claim revoked the 2001 will and was Michael’s true last will and testament.

The 2001 Will left the following bequests: (1) His brother (Lindsey) the option to purchase his interest in Robert and Sons Mortuary; (2) Bryan Williams (nephew) $3,000 in cash and some personal property; (3) Jason Williams $1,500; (4) 1/2 of residue to any children born in the future; and (5) remainder of residue to Mississippi Delta Community College.

The 2016 will left the following bequests: (1) Jeremy Isiah Holmes $500 (and any unidentified/unborn children $10.00 each); and (2) all interest in Mortuary to brother Keith Roberts; 3) residiary to be equally divided between his 4 siblings (Lindsey, Gloria, Debra, and Keith).

The 2016 will was witnessed by Mary Blueitt and Lena Berry. Blueitt was deceased by the time of the hearing on the will, but Lena Berry was alive and able to testify (she was eighty-nine years old at the time of the hearing). Berry remembered Michael as “both a brother and a son” and they both attended the same church. She testified that one day Michael flagged her down at a service station and asked her to “do him a little favor.” Berry went to a funeral home owned by Michael that afternoon. Ms. Blueitt was already at the funeral home. Michael asked both ladies to sign a document — he never told them specifically that they were signing his will. However, Berry said that she noticed that the document said a “little something about a will” and that she saw the word “will” on it.

The chancellor heard testimony from a witness qualified as an expert in forensic document examination. According to the expert, the signature on the 2016 Will was not consistent with Michael’s signature on other documents and therefore the will was invalid as a forgery.

After hearing the competing testimony of Berry and the expert, Chancellor Kiley Kirk (Carroll County Chancery Court), issued what the Court of Appeals described as “a thorough and eloquent written judgment”, holding that the 2016 will was valid (the Judgment is here). (Estate of Roberts v. Johnson, 2024 WL 4889910 (Miss. Ct. App. 2024))

Teressa and Bryan appealed arguing that the chancellor erred in holding that the 2016 will was valid because Michael’s signature on the will was forged and the court did not give enough weight to the forensic expert’s testimony.

The Court of Appeals, in a unanimous opinion written by Judge Carlton affirmed the Chancellor Kirk.

The ultimate question was whether there was sufficient evidence that the will was “attested” by Berry. Miss. Code Ann. § 91-7-7 provides that the execution of the will “must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify.” The witnesses did not sign self-proving affidavits, therefore, Ms. Berry’s testimony was necessary to establish valid execution of the will.

To “attest” a will the witness must be able to testify that they know that the document they are signing is a will. To this end the testator must “publish” the will to the attesting witnesses, which means “a communication by the testator, or attributable to the testator that the subject writing is a will.”

Here, there were two arguments made that the will was not sufficiently attested: (1) there was no evidence that Michael ever told Ms. Berry that what she was signing was his will; and (2) the testimony of the expert witness that the 2016 will was not signed by Michael was sufficiently strong to overcome what testimony that Ms. Berry did supply.

Although the court of appeals acknowledged that there was no testimony that Michael ever told Ms. Berry she was signing a will, the court held that “publication may be accomplished through construction.” The court relied on a 1927 case from the Mississippi Supreme Court which recognized the following:

It is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and that they are to be witnesses thereto. Green v. Pearson, 110 So. 862, 864 (Miss. 1927)

Therefore, with the deference given to the chancellor, the following facts were sufficient to establish attestation: that she knew Michael and witnessed him sign the document, and that she “saw it said ‘will’ over there.” As for the testimony of the forensic expert, the court held that it was up to the chancellor to weigh the credibility of the testimony and the chancellor did not err in giving more weight to Ms. Berry who was on the scene and could testify as to what happened.

One last, although important point. The appellants argued that the 2016 will should not have been admitted into evidence because it was not properly authenticated under Rule of Evidence 901 (“to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the time is what the proponent claims it is.” Specifically, Ms. Berry could testify that it was her signature on the document but testified “I don’t know” when asked if the document she signed was Michael’s will. The court of appeals affirmed the chancellor’s holding that Miss. Code Ann. §§ 91-5-1 and 91-7-7 set out the standards for authentication of a will — and not Rule 901.

Professor’s Thoughts

This case is a reminder of the value of a self-proving affidavit when executing a will. Miss. Code Ann. § 91-7-7 provides that due execution of a will can be established by:

(1) bringing at least one of the witnesses to court to testify as to the valid execution. The problem with this approach, as demonstrated in this case, is that the witness may not remember what occurred when the execution was years ago. In addition, it may be, like in Herd, that witness may not have been told exactly what they were signing. In Herd, if Ms. Berry had not testified that she saw the word “Will” on the document, it is very unlikely that the will could have been proven.

(2) If none of the witnesses can be produced, the handwriting of the testator and the subscribing witnesses can prove the will. This, of course, requires testimony of individual(s) who can verify the signature of everyone involved in the execution. To see the potential problem with this, consider Matter of Beard v. Christmas, 334 So. 3d 1154 (Miss. 2022). In that case, the proponent of the will put on testimony of someone who could verify the signature of the testator and only one of the attesting witnesses — therefore execution of the will was not established.

(3) Execution of the will can be established by notarized affidavits of the subscribing witnesses. The affidavits can be attached to the will or made part of the will. The affidavits can also be signed at the time the will is executed. The affidavit must include the address of each witness. This approach — using a self-proving affidavit – alleviates the problems that can arise when trying to prove a will after the decedent dies and the witness is either dead or cannot remember what is required to prove due execution.

It is important to remember that an affidavit is testimony in affidavit form. That means that the testimony can be challenged/discredited if the statements made in the affidavit are not true (just like with live testimony). To this end, it is important that the witnesses signing the affidavit know what it says and agree to what they are “testifying” to.

Below is a sample of a self-proving affidavit

Affidavit of Subscribing Witness

STATE OF MISSISSIPPI

COUNTY OF ________________

Personally appeared before me, the undersigned authority in and for the jurisdiction aforesaid, ________________, whose address is _________________________, and __________________, whose address is _____________________________, who, being first duly sworn, state under oath the following:

That on the ___ day of ______________, 20__, the Testator, who is personally known to each of us, in our presence signed, published and declared the foregoing instrument of writing to be his/her Last Will and Testament; that we at his/her request and in his/her presence and in the presence of each other signed our names thereto as witnesses to its execution and publication; that at the time of execution of the instrument the testator was over the age of 18 and was of sound and disposing mind and memory.

Dated this ___ day of ___________, 20____.

____________________________________

Witness

____________________________________

Witness

SWORN TO AND SUBSCRIBED before me this the [] day of [], 20.

_____________________________________

NOTARY PUBLIC

My Commission Expires:

_____________________

<From Robert A. Weems, Wills and Administration of Estates in Mississippi (3d.)>