In re Estate of Speers

• Decision Date: 26 February 2008
• Docket Number: No. 103,813.,103,813.
• Citation: 2008 OK 16,179 P.3d 1265
• Parties: In the Matter of the ESTATE OF Shirley Joyce SPEERS, Danny Speers, Lee Ann Fincher, and Sherry Ross, Appellants, v. Ann Speers, Appellee.
• Court: Oklahoma Supreme Court

179 P.3d 1265

2008 OK 16

In the Matter of the ESTATE OF Shirley Joyce SPEERS,

Danny Speers, Lee Ann Fincher, and Sherry Ross, Appellants, v. Ann Speers, Appellee.

No. 103,813.

Supreme Court of Oklahoma.

February 26, 2008.

Certiorari to the Court of Civil Appeals, Division Two, Honorable Richard E. Branam, Trial Judge.

¶ 0 After Ralph Speers' death, his second wife, Ann Speers (appellee) discovered and sought to admit to probate the purported will of Shirley Joyce Speers (testatrix), Ralph Speers' deceased first wife. Danny Speers, LeeAnn Fincher, and Sherry Ross, the testatrix's children (collectively, contestants), filed an objection, arguing that the instrument was not executed with the proper statutory formalities. The trial court found that the will was not self-proving because of its lack of a notary seal, but that because the statutory formalities had been observed, the will was valid and should be admitted to probate. The Court of Civil Appeals affirmed, and the contestants appealed. We find that because no competent evidence was presented that: 1) there were two subscribing witnesses; 2) the testatrix published her will to two subscribing witnesses; 3) two subscribing witnesses signed the instrument in the presence of the testatrix; and 4) the testatrix signed the instrument in the presence of two subscribing witnesses or acknowledged that the signature on the instrument was hers, the trial court erred in admitting the instrument to probate. We reverse and remand with instructions that the will not be admitted to probate.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; DISTRICT COURT ORDER REVERSED AND REMANDED WITH INSTRUCTIONS.

David Youngblood, Atoka, OK, for Appellants.

Mark Morrison, Durant, OK, for Appellee.

KAUGER, J.

¶ 1 The issue presented is whether the trial court erred in admitting the contested will to probate. We find that it did.

FACTS

¶ 2 On June 15, 1982, Shirley Joyce Speers (testatrix) signed a "Last Will and Testament" (will/instrument). It named her husband, Ralph Speers (husband) as her executor and Doyle Wesley Fincher as her alternate executor. It also gave her daughter, Sherry 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 was devised in equal parts to James Nelson Fincher and Jonathan Clyde Fincher, the testatrix's grandsons. The will expressly omitted LeeAnn Fincher, the testatrix's daughter. It was signed by Sadie B. Walton (Walton) and Walter Durbin (Durbin) as witnesses and notarized by Vicky Thomas (notary), but it was not stamped with a notary seal. The testatrix died on April 20, 1997, and the instrument was not probated at the time of her death.

¶ 3 At some point after his wife's death, the husband married Ann Speers (appellee). The husband died some time before June of 2005, and upon searching his records, his second wife discovered the will. She filed her petition on June 2, 2005, seeking to admit it to probate. The instrument submitted by the appellee contained several handwritten strikeouts and interlineations.¹ On June 7, 2005, the testatrix's children, Danny Speers, LeeAnn Fincher, and Sherry Ross (collectively, contestants) filed an objection to the petition for probate of the will and contest of the will, arguing that instrument was invalid because the original will was destroyed, thereby invalidating any copies.

¶ 4 On August 18, 2005, the trial court held a hearing on the matter and Durbin was called as a witness. Durbin testified that he remembered: 1) signing the instrument; 2) seeing the testatrix sign the instrument; and 3) that there were no strikeouts or interlineations on the document he signed.² Durbin testified that he had no recollection of: 1) being acquainted with Walton; 2) the location at which he signed the instrument; 3) seeing Walton sign the instrument; 4) hearing the testatrix state aloud "this is my will;" 5) seeing the notary at the time he signed the instrument; or 6) seeing the testatrix initial the bottom of each page.³ Durbin also gave the following testimony:

Q. All right. Do you remember where you may have been, wherever it was, when you signed the document?

A. I presume at the Church of Christ at Caney. She probably come to the church and asked me to sign it, I suppose, now, but I don't know that, positive.

Q. Okay, that's what we want to know, if you have a positive recollection of that. That's where you think you may been; is that right?

A. Could have been, yes.

Q. But as you sit here today — and correct me if I'm wrong — but as you sit here today you don't specifically remember this event, do you?

A. No....⁴

Walton was not produced to testify.

¶ 5 On August 18, 2005, the trial judge entered a court minute admitting the will to probate and appointing Doyle Wesley Fincher the executor. On September 12, 2006, the trial court filed a journal entry of judgment finding:

1) the will was a photocopy of an original with original signatures attached;⁵

2) the will was not self-proving because it contained no notary seal;

3) the will was required to be proved by subscribing witnesses under 85 O.S. § 55(5) and 49 O.S. § 5;

4) there must be a showing that one of the subscribing witnesses is deceased or insane if that witness cannot testify, and the appellee made that showing;

5) the will was valid and was admitted; and

6) Doyle Wesley Fincher was named executor.

¶ 6 On September 29, 2006, the contestants filed their petition in error. On February 22, 2007, the cause was assigned to the Court of Civil Appeals. On September 21, 2007, the Court of Civil Appeals affirmed the ruling of the trial court. On October 9, 2007, the contestants filed their petition for certiorari, and we granted certiorari on January 22, 2008.

¶ 7 BECAUSE THERE WAS NOT SUFFICIENT EVIDENCE IN THE RECORD THAT THE INSTRUMENT WAS EXECUTED WITH THE PROPER STATUTORY FORMALITIES, THE INSTRUMENT SHOULD NOT HAVE BEEN ADMITTED TO PROBATE.

¶ 8 Probate proceedings are equitable in nature.⁶ Although this Court will examine and weigh the evidence, there is a presumption that the trial court's decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law.⁷ Where the probate of a will is contested and the testimony is conflicting as to execution, the judgment of the trial court will not be disturbed if there is any substantial testimony supporting the judgment and finding.⁸ If legally correct, a district court's ruling will not be reversed because of faulty reasoning, an erroneous finding of fact, or consideration of an immaterial issue.⁹

¶ 9 When a will is offered for probate, the singular concern of the court is the factum of the will, which consists of three elements: 1) whether the will has been executed with the requisite statutory formalities; 2) whether the maker was competent to make a will at the time; and 3) whether the will was the product of undue influence, fraud or duress.¹⁰ The emphasis of the judicial process is to discern and effectuate the decedent's intent.¹¹ The burden of proof in the trial of a contest of the probate of a will is upon the proponents of the will to make a prima facie showing that the will is adequate for probate; then the burden shifts to the contestants to establish the issues presented by their contest.¹²

¶ 10 The elements of a valid will and the method for making a self-proved will are found at 84 O.S. Supp.2004 § 55.¹³ Because there is no notary seal on the instrument, it is undisputed that the instrument is not a self-proved will.

¶ 11 Here, the contestants do not allege that the testatrix was incompetent to make a will, nor do they allege that the will was a product of undue influence, fraud, or duress. The contestants' allegation is that the proponent did not make an adequate showing that the instrument was executed with the following statutory formalities: 1) there were two attesting witnesses; 2) the instrument was signed by the testatrix in the presence of both attesting witnesses or that the testatrix acknowledged to both witnesses that the signature on the instrument was hers; 3) the testatrix declared to both the attesting witnesses that the instrument was her will; and 4) that both attesting witnesses subscribed the instrument at the testatrix's request and in her presence.¹⁴

A.

The Trial Court Erred in Finding That There Were Two Subscribing Witnesses.

¶ 12 The burden of proof rests upon the proponent of the will to establish by preponderance of evidence that the will was executed and published according to law.¹⁵ Title 58 O.S.2001 § 43 provides in pertinent part:

If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county, and are not present at the time appointed for proving the will, or although such witnesses reside in the county and are insane or incompetent, and such facts are first made to appear to the court, either in contested or noncontested will cases, the court may admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will and, as evidence of the execution, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them....[Emphasis added.]

These statutory provisions clearly reflect an intent that, in the event of a will contest, the testimony of the subscribing witnesses is essential to prove the proper execution of the will.¹⁶ The contestants argue that Walton's death was not satisfactorily shown to the trial court.

¶ 13 While Durbin was called to testify in the...