1. Applying the laws of intestacy and wills, why do you think Ann wanted the will admitted to probate?

2. What lessons does this case provide on the importance of witnesses to a will? Of the notarized signatures?

3. Do you think the court would have concluded differently if the copy of the will had not had lines through it?

On June 15, 1982, Shirley Joyce Speers signed a “Last Will and Testament.” It named her husband, Ralph Speers, as her executor. It also gave her daughter, Sherr Arlene Ross, her household furnishings and appliances, and her son, Daniel Eugene Speers, her livestock. Her husband was named the beneficiary of the rest of the estate, provided he paid the estate’s expenses. If he failed to do so, his share went to their children and grandsons. The will was probably witnessed and signed, but not notarized. The witnesses did not see any lines or strikeouts in the will when they signed it. Shirley died on April 20, 1997, and the will was not probated at the time of her death.

After his wife’s death, Ralph married Ann Speers. Ralph died some time before June 2005, and Ann then discovered a copy of Shirley’s will with lines through it and cross-outs. She filed a petition seeking to admit the will to probate. The will she submitted contained several handwritten strikeouts and interlineations. Shirley’s children objected to the admission of the will, arguing that it was invalid because the original will was destroyed. The court found for Ann and the children appealed. The Court of Appeals reversed and Ann appealed.

JUDICIAL OPINION

KAUGER, Justice … This Court has held that where the attestation clause recites due execution of a will, it creates a prima facie case of due execution of the instrument, which can be overcome only by clear and convincing evidence. In proceedings for the probate of an instrument as a will where it appears to have been duly executed, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law.

Several other jurisdictions also permit the execution of will to be established without the testimony of one or both of the subscribing witnesses, but most require the proponent to establish execution by some other method of proof. Here, there was no evidence offered by the appellee establishing the attestation clause either by handwriting analysis, or any other form of proof. This is not sufficient to create a prima facie showing of due execution of the instrument, and therefore the instrument should not have been admitted to probate.

The formalities to be observed in the execution of wills are simple and calculated to prevent fraud and uncertainty in the testamentary dispositions of property. Here, because of the absence of a notary seal, the will presented for probate was not self-proving. The evidence reflects that there was only one subscribing witness. A determination that there were two subscribing witnesses based solely on one witness’s testimony that he couldn’t recall the other witness, that he had been told she was deceased, and that he wasn’t sure she ……………..