McElroy v. McElroy
| Decision Date | 20 November 2020 |
| Docket Number | 1190888 |
| Citation | 327 So.3d 207 |
| Parties | Tomeka MCELROY and Marlon McElroy v. Tracy MCELROY, as personal representative of the Estate of Clifton McElroy, Jr., deceased |
| Court | Alabama Supreme Court |
John G. Dana and James A. Stewart of Gordon, Dana & Gilmore, LLC, Birmingham, for appellants.
Rodger M. Smitherman of Smitherman Law Offices, LLC, Birmingham; and Wayman Powell III, Birmingham, for appellee.
Tomeka McElroy and Marlon McElroy (hereinafter referred to collectively as "the contestants") appeal from a judgment entered in a will contest by the Jefferson Probate Court in favor of Tracy McElroy, as personal representative of the estate of Clifton McElroy, Jr., deceased.1 We affirm.
Clifton McElroy, Jr., a resident of Jefferson County, died on April 11, 2010, leaving a will that was purportedly executed by him on October 15, 2008. On April 14, 2010, Tracy petitioned the probate court to admit the will to probate, averring that the will was self-proving in accordance with the requirements of § 43-8-132, Ala. Code 1975. On that same day, the probate court admitted the will to probate and issued letters testamentary to Tracy.
On September 16, 2010, the contestants filed a will contest in the probate court challenging the validity of the will. They specifically alleged that Clifton's signature on the will was forged and that, therefore, the will was not properly executed. The administration of the estate, including the will contest, was removed to the Jefferson Circuit Court pursuant to § 12-11-41, Ala. Code 1975.
After discovery delays, multiple continuances, and a failed summary-judgment motion filed by the contestants, the circuit court conducted a three-day bench trial on the will contest. After hearing the evidence, the circuit court entered a judgment finding 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. The contestants appealed. This Court dismissed their appeal because the administration of the estate had not been properly removed from the probate court; thus, the circuit court never obtained subject-matter jurisdiction over the estate administration or the will contest.2 McElroy v. McElroy, 254 So. 3d 872 (Ala. 2017).
After this Court dismissed the contestants' appeal, the probate court held a status conference and ordered a new trial to determine the validity of the will, specifically whether the will had been properly executed and proved as required by Alabama statutory law. The contestants moved for a summary judgment or, alternatively, for a judgment on partial findings. Tracy opposed the motion and filed a cross-motion for a summary judgment. The parties thereafter agreed that, in lieu of another bench trial, the probate court would base its ruling regarding the validity of the will on written materials, including the transcript of the bench trial in the circuit court.
The circuit-court transcript upon which the probate court relied indicates, among other things, that the will, dated October 15, 2008, was not personally signed by Clifton but, rather, was signed by Tracy. Specifically, Tracy testified that she signed Clifton's name on the will at Clifton's direction and in his presence. She stated that, after she signed Clifton's name on the will, she never saw the will again until after he died. Tracy admitted that Clifton had no physical impairment that would have prevented him from personally signing the will. She testified, however, that Clifton had routinely requested and/or told her to sign his name on various documents. Tracy finally testified that she never told anyone that she had signed Clifton's name on the will until after the contestants filed the will contest and hired a handwriting expert who opined that Clifton's signature on the will was a forgery. Tomeka testified that she was surprised to learn that Clifton had a will because, she said, in the months leading up to his death, she heard Clifton say that he did not have a will and that he wanted his estate divided evenly among his four children. Tomeka further testified that, after Clifton's funeral, she compared the signature on the will to other documents Clifton had signed and determined that the signature on the will was not Clifton's signature. Tomeka stated that she hired attorneys to file a will contest, which required a handwriting expert to prove that the signature on the will was a forgery. Tomeka further stated that, after the handwriting expert conducted his review of the signature and his identity and findings were disclosed in the discovery process, she learned that Tracy, not Clifton, had signed Clifton's name to the will.
Willie Jackson, one of the subscribing witnesses, testified that he had known Clifton for over 40 years and that, while he was at Clifton's house on one occasion, Clifton handed him a document and stated: "I need you to witness this."3 Jackson testified that he signed the document in Clifton's presence but that he could not recall if Clifton's signature was on the document when he signed it. Jackson also testified that he assumed the document Clifton had asked him to witness was a will. He clarified, however, that he read the paragraph above his signature line, which stated that the document was Clifton's will:
Juandalynn Givan, a licensed attorney, testified that she prepared Clifton's will in accordance with Clifton's instructions; that she delivered the will to Clifton; and that she told Clifton that the will needed to be signed, notarized, and witnessed. Givan stated that she later received an executed copy of the will, which she kept in her files. Gloria J. Patrick, a notary public, testified that, at Clifton's request, she went to his house and notarized the will. Patrick stated that, before notarizing the will, she specifically asked Clifton if the signature on the will was his and that he replied that it was. After considering the testimony, which, again, included testimony in the transcript from the circuit-court bench trial, the probate court entered a judgment declaring that the will was valid and ordering that it be admitted to probate. The contestants appealed.
The circuit court that conducted the bench trial in the will contest never obtained subject-matter jurisdiction over the contest; thus, its judgment was void and can be accorded no weight. McElroy, supra. By agreement of the parties, the probate court tried the will contest solely on written materials, including the transcript of the bench trial in the circuit court, and entered a judgment declaring the will to be valid. In these circumstances, the ore tenus rule does not apply, and this 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 (); see also Ex parte Sacred Heart Health Sys., Inc., 155 So. 3d 980, 985 (Ala. 2012) (); and Dombrowski Living Tr. v. Morgantown Prop. Owners Ass'n, Inc., 229 So. 3d 239 (Ala. Civ. App. 2016).
The contestants argue that Clifton's will is not valid because, they say, it was not properly executed pursuant to § 43-8-131 and it was not proved by the method set forth in § 43-8-167, Ala. Code 1975. Section 43-8-131 governs the formal requirements for the execution of a will:
"Except as provided within section 43–8–135, [Ala. Code 1975,] every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will."
(Emphasis added.)
The contestants argue that the will was not properly executed under § 43-8-131 because, they say, Clifton failed to acknowledge to a witness, either orally or through a written notation on the will, that he had directed Tracy to sign his name on the will. The contestants claim that the purpose for requiring such an acknowledgment is to avoid fraudulent wills from being admitted to probate. The contestants, however, do not cite any legal authority to support their assertion, and our research reveals no law requiring a testator to make any representation to a witness other than to indicate the document is his or her will and to ask the witness to sign it.
As a threshold 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...
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