The “attestation” requirement for a will: Estate of Roberts v. Johnson
January 9, 2025 § 1 Comment
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.)>
Just when you thought the Mortmain law was dead (Mississippi Baptist Foundation v. Fitch)
October 1, 2024 § Leave a comment
By: Donald Campbell
This is an unusual post. It is about a 2023 case dealing with Mississippi’s Mortmain law – a law that was repealed in the early 1990’s.
Reverend Harvey McCool died on August 31, 1969, survived by his wife Maggie McCool. In his will, he devised a mineral interest that he owned to the Mississippi Baptist Foundation (MBF), to be held in trust for his wife and his sister for their lives. At the death of his wife and sister, the MBF was to use the property “for the use and benefit of Foreign Missions carried on by, under the auspices of, or participated in by, the Mississippi Baptist Convention.”
Maggie died on April 17, 1973, with a will leaving her property to 3 children from a previous marriage (including the mineral interest). Reverend McCool’s sister died on February 5, 1986.
In December 2019, MBF filed a complaint in Amite County Chancery Court to probate Reverend McCool’s will and confirm title to the mineral interest. Because MBF was challenging the constitutionality of Mississippi’s Mortmain statute, the Attorney General, in addition to the heirs and successors of Maggie, were made parties to the suit.
The case was assigned to Chancellor Debbra K. Halford. The chancellor held that the Mortmain laws were constitutional, and that MBF was divested of any interest in the property in 1979 – ten years after the death of McCool.
MBF appealed and the case (Mississippi Baptist Foundation v. Fitch, 359 So. 3d 171 (Miss. 2023)) was decided by the Mississippi Supreme Court on March 16, 2023. The case was heard by a panel of Justices King, Chambelin, and Ishee. Justice King wrote the opinion for a unanimous court affirming Chancellor Halford.
The outcome in this case turns on the validity of Mississippi’s Mortmain law. These laws, which trace their origins to the Magna Carta, were designed to restrict the ability of organizations (explicitly including charitable and religious organizations) to hold property. In Mississippi, Mortmain laws date back to 1857. The 1890 constitution prohibited all testamentary devises to religious or ecclesiastical institutions. By 1940, the Constitution had been amended to provide that no person could devise more than one-third of their estate to “any charitable, religious, educational or civil institutions to the exclusion” of certain heirs, and also included the following restrictions: (1) any devise, regardless of amount, was invalid if devised less than 90 days before the death of the testator; and (2) the organization could only hold the property for 10 years after the death of the testator, and if the organization had not sold the property within 10 years, it reverted back to the estate of the testator. The loosening of the prohibition from 1890 to 1940 was to bring some balance – by continuing to protect against the concerns that the Mortmain law was designed to address while at the same time providing some ability for the testator to promote religious or charitable organizations.In 1987/1988 the Constitution and statute were amended again to make it clear that the ten year restriction begins to run “after such devise becomes effective as a fee simple or possessory interest.”
Thereafter, in 1992/1993 the Mortmain law – both the Constitutional provision and the related statutes were repealed.
It was the 1940 version of the Mortmain law that was in effect at the time of Reverend McCool’s death. Under that law, MBF could only hold the property in fee simple absolute for 10 years before it reverted back to Reverend McCool’s estate. MBF argued that McCool’s will devised a life estate to Maggie and McCool’s sister, and that MBF did not acquire a fee simple absolute interest – triggering the 10 year limitation – until 1986 at the death of McCool’s sister. And, MBF argued, since the Mortmain laws were repealed in 1992/1993 – their limitations did not apply when the 10 year reversion kicked in in 1996. In addition, MBF argued, if the Mortmain statute did apply, it was unconstitutional.
In a Court of Appeals case from 2012 (Hemeter Properties, LLC v. Clark, 178 So. 3d 730 (Miss. Ct. App. 2012)), the court held that, where a legal life estate was left to family members, with a remainder interest to a charitable organization, the 10 year time frame did not start until the family members died because the organization could only sell the property with the right of possession after the family member’s death.
The Court noted that this case was not like Hemeter. Here, the MBF owned the property as a trustee with the right to dispose of the property at any time (unlike Hemeter). Therefore, because MBF had the right to dispose of the property at the death of Reverend McCool, the ten years to dispose of the property began running at Reverend McCool’s death in 1969. MBF did not sell the mineral interest before 1979, therefore the property interest reverted to estate of Reverend McCool in 1979.
The Court refused to address MBF’s argument that Mississippi’s Mortmain law is unconstitutional – holding that MBF knew (or should have known) about the Mortmain statute issue at Reverend McCool’s death and waited more than 40 years to challenge the statute’s constitutionality. Therefore, MBF was barred both legally (under the statute related to claiming an interest in land) and equitably (failure to act timely to protect their rights) from making a constitutional argument.
Professor Thoughts
One thing I always tell my students in Wills & Trusts and Property Law classes is how far reaching their representation can be. Mistakes in property transfers (either by deed or by will) may not be recognized until years later. This case is certainly an example of that. I only teach Mortmain statutes in passing, because they have been repealed or declared unconstitutional in almost all jurisdictions today.
Because a number of lawyers practicing today have probably never studied (or perhaps heard of) Mortmain laws, I thought a short discussion would be worthwhile. If nothing else, this should get you a point if this is the answer to a trivia question.
The Statutes of Mortmain were first enacted in the late 1200’s during the reign of Edward I. The goal was to prevent land from passing into the hands of the church and out of the taxing authority of the crown. This was the same justification for enactment of Mortmain laws in the United States – taking property permanently out of the stream of commerce and the taxing authority of the state.
This was not the only justification, however. There was also the concern that a testator who is near death could be in a position to be unduly influence by charitable organizations – leveraging the testator’s fear of death to secure a bequest. Hence, Mississippi’s 1940 version of the law which invalidated bequests made within 90 days of death.
A final justification (and this is my favorite) is to prevent a testator who was not charitable during life to be charitable at death at the expense of their family. Mississippi’s law reflected this by restricting the amount that could be devised to no more than one-third of the testator’s estate.
It might be worthwhile setting out the constitutional challenges to the Mortmain statute argued by MBF. While the Supreme Court did not address these arguments, other states have invalidated their Mortmain statutes based on constitutional challenge.
The essential argument is that Mortmain laws violate the Equal Protection Clause because they are not able to survive rational basis review. Specifically, MBF’s brief argues that the purpose of the Mortmain laws are to prohibit the testator from being unduly influenced by the named organizations and they are not rationally related to that goal because:
- They do not take into account the susceptibility of the individual testator to undue influence or whether the testator was actually in their last illness at the time the bequest was made;
- They do not take into account whether the testator has close family that need to be protected from overreach;
- They do not take into account the fact that others are in “an equal position to improperly influence the testator, including lawyers, doctors, nurses, clergymen, caretakers, housekeepers, companions, and the like” and there is no reason to believe that religious or charitable organizations are more “unscrupulous than greedy relatives, friends, or acquaintances”;
- The statutes do not address inter vivos gifts and non-charitable gifts that have the same potential for overreaching.
To the extent that a proper case comes forward, these arguments remain valid arguments against the Mortmain law. It should be noted, however, that there are counter arguments. For example, the fact that the charity could sell the property within 10 years and not lose the value of the bequest could save the statute if a valid challenge is ever raised.
The Better Chancery Practice Blog 