Meyer v. Fanning (In re Estate of Meyer)

Decision Date20 January 2016
Docket NumberNo. S–15–0134.,S–15–0134.
Citation367 P.3d 629
Parties In the Matter of the ESTATE OF P. Richard MEYER, Deceased. Miracles Meyer, Personal Representative for the Estate of P. Richard Meyer, Appellant (Respondent), v. Kelly Catherine Fanning, Appellee (Petitioner).
CourtWyoming Supreme Court

Representing Appellant: Weston W. Reevesand Anna Reeves Olsonof Park Street Law Office, Casper, Wyoming. Argument by Mr. Reeves.

Representing Appellee: J. Denny Moffettof Moffett & Associates, PC, Jackson, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶ 1] P. Richard Meyer executed his Last Will & Testament (Will), which complied with the form for self-proving wills set forth in the Wyoming Probate Code. Wyo. Stat. Ann. § 2–6–114 (LexisNexis 2015). However, when the Will was filed for probate, the witnesses could not recall having seen the testator or each other sign the Will. Further, one of the witnesses was also the notary. The district court found that the Will was not self-proving, and that, because the only witness who could recall the Will signing did not remember seeing the other witness sign the Will, there was no way the Will could be proven. The district court granted summary judgment in favor of the Will contestant and against the Will proponent. The Will proponent appeals, and we reverse and remand.


[¶ 2] Can a non-self-proving will be proven and admitted to probate when the witnesses to the testator's signature cannot recall if the testator signed the will in both their presence?


[¶ 3] Mr. Meyer executed his Will on March 24, 2008, bequeathing all of his property to his fourth wife, Miracles Meyer, and naming her as his personal representative. The Will is signed by Mr. Meyer and witnessed by Deborah Walker and Denise Burkel. All three signatures are in the affidavit form for self-proving wills as set forth in Wyo. Stat. Ann. § 2–6–114, and they are notarized by Denise Burkel.1

[¶ 4] Mr. Meyer passed away on April 1, 2013. On April 25, 2013, Miracles Meyer, his wife at the time of his death, filed a petition to probate the Will. The district court entered an order finding the Will to be self-proving, opened probate, issued letters testamentary, and appointed Mrs. Meyer as personal representative of the estate.

[¶ 5] Shortly thereafter, Appellee Kelly Fanning, Mr. Meyer's child from a previous marriage, filed a petition to revoke the order admitting the Will to probate, asserting it had been improperly executed and was the product of undue influence and fraud.2 She attached to her petition the affidavits of the two subscribing witnesses, Deborah Walker and Denise Burkel–Groth.

[¶ 6] In 2008, Ms. Walker was a part-time bookkeeper in the Meyer and Williams law office, where the Will was executed. Ms. Walker testified by affidavit that "Richard Meyer asked me to sign his Will but did not show me any pages other than the last page, which he and I both signed." According to her affidavit, she had no recollection of Ms. Burkel–Groth being present or signing the Will, but did recall that Mr. Meyer signed the Will and that Mrs. Meyer was present. Ms. Walker also stated, "I specifically recall that I did not witness anyone other than myself and Richard Meyer sign the Will, and I did not see anyone notarize the Will." Ms. Walker later testified in her deposition that she had no memory of seeing Mr. Meyer sign the Will or whether his signature was on the Will prior to her signature.

[¶ 7] The second witness and notary, Ms. Burkel–Groth, worked as a legal assistant at another law firm in the same building. Ms. Burkel–Groth had no specific memory of witnessing the Will. She testified, "I have no doubt that it happened, but [I do not remember] any specifics of that day[.]" Ms. Burkel–Groth gave conflicting testimony about her course of conduct as a notary: first testifying in her affidavit that she "often notarized documents that were presented to me in my office, although I was not present while the documents were actually signed[,]" and then modifying that statement in her deposition to explain that she "more often than not" witnessed signatures on documents she notarized, or that she "always" saw the person sign the documents she notarized.

[¶ 8] The Will contained the following attestation clause:

The undersigned witnesses, sign our names to this instrument, being first duly sworn and do hereby declare to the undersigned authority that P. Richard Meyer signs and executes this instrument as his last Will and that he signs it willingly and that he executes it as his free and voluntary act for the purposes therein expressed, and that each of us, in the conscious presence of P. Richard Meyer, hereby sign this Will as witness to his signing, and that to the best of our knowledge P. Richard Meyer is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

This clause appears immediately below the signature of Mr. Meyer and immediately above the signatures of both Ms. Walker and Ms. Burkel–Groth. Both Ms. Walker and Ms. Burkel–Groth testified that their signatures on the Will are genuine.

[¶ 9] The parties filed cross-motions for summary judgment. Ms. Fanning asked the district court to find that the Will was not a self-proving will, and could not be proven because it was not possible to satisfy the requirements to prove a non-self-proving will contained in Wyo. Stat. Ann. § 2–6–205. Mrs. Meyer asked the court to admit the Will to probate because it met the requirements for a valid will in Wyo. Stat. Ann. § 2–6–112.3

[¶ 10] The district court concluded that the Will contained two defects that prevented it from being a self-proving will: first, if "Richard Meyer signed the [W]ill in front of Ms. Walker, but Ms. Burkel–Groth was not present, then both witnesses did not witness the testator's signature[;]" second, if both witnesses were not present, there could not have been the "simultaneous" execution and attestation required for a self-proving will. In addition, the district court held that a person could not act as both a witness and a notary; therefore Ms. Burkel–Groth's signature in one capacity or another was not valid. There would either not be two attesting witnesses, or there would be no notary, and thus, the Will could not be self-proving.

[¶ 11] The district court next considered Ms. Fanning's contention that the Will was not capable of proof. The court held that if a will is not self-proving, it must be proven by "oral or written testimony of one or more of the subscribing witnesses to the will. Wyo. Stat. § 2–6–205(a). If both witnesses are deceased or unavailable, a different method of proof may be used. § 2–6–205(c)." The court also determined proof by both affidavit and deposition pursuant to § 2–6–205requires that the testimony of a witness establish that "the will was signed by the witnesses 'in the presence of said testator and in the presence of each other.' Wyo. Stat. § 2–6–205(a)." The court found that, because neither witness could testify that they saw Mr. Meyer sign the Will, or that they signed the Will "in the presence of said testator and in the presence of each other," the Will could not be proven. The court held that, although they are not expressly stated in those subsections, these requirements also applied to an attempt to prove a will by deposition under § 2–6–205(b), or by oral testimony under § 2–6–205(a), construing the statutes in pari materia. The court rejected Mrs. Meyer's attempt to introduce other evidence, such as her own affidavit,4 determining that such proof could only be considered when both witnesses are unavailable, under § 2–6–205(c).

[¶ 12] The district court then turned to Mrs. Meyer's summary judgment motion. She argued that the Will was a valid will in compliance with § 2–6–112(to be valid, a non-holographic will must be written and signed by the testator and two witnesses). The court rejected this argument, holding that "Compliance with the minimum requirements of Wyo. Stat. § 2–6–112for a will does not prove a will." The court held:

Under the probate code, a will may be admitted to probate upon due execution (1) as a self-proving will; (2) by written testimony as a non-self-proving will; or (3) by deposition testimony as a non-self-proving will. If both subscribing witnesses are deceased or otherwise not available then there may be a fourth method of proof by other evidence. This is not a case where both subscribing witnesses are unavailable.

[¶ 13] The district court then disposed of Mrs. Meyer's argument that a notary's signature is presumptive proof that the notary witnessed the signatures, holding that such a presumption is clearly rebutted by the testimony of Ms. Walker that Ms. Burkel–Groth was not present when Richard Meyer and Ms. Walker signed the Will, and by Ms. Burkel–Groth's own testimony that she did not always witness the signatures that she notarized.

[¶ 14] The district court granted Ms. Fanning's motion for summary judgment and denied Mrs. Meyer's cross motion for summary judgment. This appeal followed.


[¶ 15] Motions for summary judgment are made pursuant to Rule 56(c) of the Wyoming Rules of Civil Procedure, which requires that

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
... We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling.

Mont. Food, LLC v. Todosijevic, 2015 WY 26, ¶ 10, 344 P.3d 751, 754–55 (Wyo.2015)(citing Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 16, 317 P.3d 1124, 1131 (Wyo.2014), quoting Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo.2011)) (internal citations omitted).

The Statutory Conflict

[¶ 16] The result of the analysis...

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