Pool v. Estate of Shelby

[22] The majority opinion seriously digresses beyond our established jurisprudence with today's holding that on its face the "purported revocation" fails to comply with the statutory formalities for the execution of a will. Additionally, the trial court's findings of testamentary capacity and intent are against the clear weight of the evidence. Accordingly, I respectfully dissent.

[23] First, the established rule of law in this jurisdiction is that the absence of an attestation clause does not destroy the validity of a will, but only changes the proof required to show that the will was signed and witnessed as required by law.1 The applicable statutory requirements for the execution of a will are set forth in 84 O.S.Supp. 1977 § 55[84-55].2 Under the substantial compliance doctrine,3 § 55 imposes only two requirements which must appear on the face of a valid will: 1) It must be subscribed at the end by the testator/testatrix, and 2) It must be subscribed at the end by two witnesses. In addition to these subscriptions, which must appear on the face of the will, § 55 imposes requirements which may be established by evidence other than the will: 1) The testator/testatrix declared to the witnesses that the instrument is his/her will; 2) The testator/testatrix subscribed it in the presence of the witnesses; 3) The testator/testatrix requested the two subscribing witnesses to be witnesses; and, 4) *Page 365 The witnesses subscribed the instrument in the presence of the testator/testatrix.

[24] A will may be revoked by a nontestamentary instrument, if it declares such revocation and it is executed in accordance with § 55. 84 O.S. 1981 § 101[84-101]. And, a self-proved will may be revoked in exactly the same fashion as a will not self-proved. 84 O.S. 1981 § 55[84-55].4

[25] The revocation instrument, Respondent's Exhibit 1, on its face, complies with the requirements of § 55. The revocation instrument declares that Bessie Shelby never made a will but if she did so unknowingly such will is void. The revocation instrument is subscribed at the end by Bessie Shelby and two witnesses.5 Hence, the validity of the revocation instrument turns on the additional requirements of § 55 which may be established by evidence other than the instrument itself.6 The trial court did not determine whether the revocation instrument was executed in substantial compliance with the requirements of § 55. The trial court determined that, even if the revocation is valid, it is wiped out by the refiling of the will. The issue presented on appeal from this ruling is whether the refiling of the will of Bessie Shelby constitutes republication.7

[26] As the execution and revocation of a will are governed by statute, so too is the republication or revival of a will. Sections 57[84-57] and 106 [84-106] of Title 84 prescribe the methods by which a will may be republished.8 Pursuant to § 57, republication of a previous will as modified by a codicil is effected by "execution of a codicil referring to a previous will"; and, pursuant to § 106, republication of a previous will is effected where the revocation of a subsequent will shows intent to renew the former will. These statutes encompass the general rules of law relating to republication or revival of testamentary instruments. "Republication" of a testamentary instrument is applicable "where a valid will or codicil is reexecuted or confirmed in such a way as to acquire some force or efficacy which it did not previously possess." 95 C.J.S., § 298, p. 88. "Revival" of a testamentary instrument is applicable "where a testamentary instrument or disposition which has been *Page 366 revoked or become invalid is restored or set up by reexecution or by incorporation in a valid testamentary instrument." Refiling of a will for safekeeping by a district court, with nothing more, does not constitute republication. A minimum requirement for republication, like execution or revocation, is that the testator/testatrix and two witnesses subscribe a writing, either a codicil or a revocation. The record in this appeal does not support a legal conclusion that the will of Bessie Shelby was republished or revived.9

[27] Secondly, this will contest is a case of equitable cognizance and on appeal it is the duty of this Court to examine the whole record and weigh the evidence and render the judgment that the trial court should have rendered.10

[28] The issue raised before the trial court was whether Bessie Shelby had testamentary capacity and intent at the time of making the purported will on November 29, 1979, and at the time of executing the purported revocation on May 1, 1980, and at the time of the purported republication on November 26, 1980. The will contestants alleged that Bessie Shelby lacked testamentary capacity and intent at the time of executing the will because she was unduly influenced by designing people, that is, that Creekmore's testamentary intent was substituted for that of Bessie Shelby.11

[29] The trial court entered findings that: 1) at the time the will was made, Bessie Shelby "was of sufficiently sound mind to have testamentary capacity to know who she wanted her estate she had at the time, or any estate that she might come into, to go to"; 2) based on the testimony of the family doctor, "that she was competent during all this time, and with her having filed the Will on November 26, 1980, even if the revocation at the time she made it was valid, the revocation is wiped out by the fact that she took this Will back to the Courthouse and filed the Will again with the Court Clerk, leaving it there certainly presumably to be available at the time she passed away and her estate had to be probated"; and, the testimony of the attorney who drafted the purported revocation, Patrick Brown, is contradictory in that he formed an opinion that Bessie Shelby was competent on May 1, 1980, but that he believed she was incompetent on May 13, 1980, when he initiated the proceeding to have a guardian appointed to conduct her affairs.

[30] Testamentary capacity and intent are questions of fact and the findings of the trial court will be affirmed unless the findings are against the clear weight of the evidence.12 The rules controlling our examination of the record are established. The rule for determining testamentary capacity is:

A person has testamentary capacity when his mind and memory are such that he knows, in a general way, the character and extent of his property, understands his relationship to the objects of his bounty and to those who ought to be in mind on the occasion of making a will, and comprehends the nature and effect of the testamentary act. In re Martin's Estate, 199 Okla. 567, 188 P.2d 862 (1948).

[31] Testamentary capacity is to be determined from all the facts and circumstances, Id., and it may be established by evidence of *Page 367 events occurring both before and after the execution of the will, as would tend to show the mental condition at the time of the execution.13

[32] The clear weight of the evidence in this case supports a finding that Bessie Shelby did not comprehend the nature and effect of the purported testamentary act executed on November 29, 1979. The testimony of Louise Creekmore, proponent of the will, appellee, clearly establishes that Bessie Shelby, at ages 78 years through 81 years, did not comprehend the nature and effect of the myriad of documents, including the propounded will, which she executed during the years from 1977 through 1980. The chronology of events from 1977 through 1980, as gleaned from Creekmore's testimony, clearly establishes that Bessie Shelby's intent was to regain title and ownership of her real property and that her testamentary intent was to have the property divided in such a manner as to prevent trouble among her children upon her death. Bessie Shelby's intent to regain title and ownership of her property was ultimately accomplished in 1981 in the guardian's successful action against Creekmore.

[33] Creekmore's testimony admits that Bessie Shelby was subject to undue influence. She testified that her brothers had unduly influenced her mother causing her to believe that she had conveyed all her property to Creekmore and that her brothers had confused her mother by asking her to sign too many documents. The testimony of Creekmore clearly supports a finding that Bessie Shelby did not understand the nature and effect of the purported will which she executed on November 29, 1979. The clear weight of the evidence supports a finding that Bessie Shelby's testamentary capacity and intent was prevented by the exercise of undue influence of Creekmore and Don Ferguson. No other factual conclusion is supported by the record.

[34] The majority opinion, addressing issues neither presented nor briefed, affirms the order admitting the 1979 last will and testament of Bessie Shelby for probate. With its holding that the revocation is facially invalid as a matter of law, the majority opinion rewrites our decisional law which has been established since before statehood. Pursuant to our established rules of equity, I would hold that the finding of testamentary capacity and intent in the execution of the propounded 1979 last will and testament of Bessie Shelby is against the clear weight of the evidence. Accordingly, I would reverse the order admitting the will for probate and remand this cause for intestate administration.

1 Ward v. Board of Commissioners of Logan County,12 Okla. 267, 70 P. 378, 382, 383 (1902). In In re Estate of Cutsinger,445 P.2d 778, 782 (Okla. 1968), this Court said: We are committed to the rule that the attestation "clause" of a will need not be in any particular form, and the entire absence, from it, of such a clause, does not invalidate the will.
2 The pertinent part of § 55 has not been amended since before statehood. The precise language in Section 55[84-55] of Title 84, prescribing the requisite formalities of a will, remains the same as was incorporated into the laws of the State of Oklahoma at statehood from the laws of the Territory of Oklahoma:

. . . Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic will and a nuncupative will must be executed and attested as follows:

First. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.

Second. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.

Third. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,

Fourth. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence.

The Statutes of Oklahoma, 1893, ch. 86, § 9 [86-9] (6173), at 1172-1173.

3 In Hobbs v. Mahoney, 478 P.2d 956, 958 (Okla. 1970), upon testimony of the witnesses to the will that it was possible that they signed the will out of the presence of the testatrix, this Court said that literal compliance with § 55 is not required and that substantial compliance with § 55 is sufficient. The contested will in Hobbs contained an attestation clause which this Court declared to be presumptive proof of the facts stated therein in the absence of any affirmative evidence to the contrary. See, Estate of Samochee, 542 P.2d 498 (Okla. 1975).
4 The applicable provisions of 84 O.S. 1981 §§ 55[84-55] and 101 [84-101] are the same as the codified versions of those sections governing wills and revocations on May 1, 1980.
5 The revocation instrument states:

STATE OF OKLAHOMA SS: COUNTY OF OKLAHOMA

AFFIDAVIT OF BESSIE SHELBY

I, Bessie Shelby, 81 years of age, do hereby state and affirm that I have never in my life made a Last Will and Testament. If, however, at any time that I may have unknowingly signed a Last Will and Testament, I hereby expressly declare said Last Will and Testament void.

/s/ Bessie M. Shelby Bessie Shelby

WITNESSES:

/s/ Hazel McKittrick Hazel McKittrick 1324 S.W. 44th, Okla. City, Okla.

/s/ Bruce Stephenson Bruce Stephenson 1557 S.W. 44th, Okla. City, Okla.

Subscribed and sworn to before me this 1st day of May, 1980.

/s/ Frances L. Brown Notary Public

My commission expires: 6-20-81 (Seal)

6 On review of the record in its entirety, the majority finds that the contestants of the will failed to present proof of the attestation of the revocation, hence the revocation, as a matter of law, is invalid on its face and it is invalid for lack of necessary proof. The attorney who drafted the affidavit, Patrick Brown, testified regarding its preparation and execution. Even in the absence of proper proof of the statutory formalities of execution of the revocation, the record in its entirety does not support the trial court order admitting the purported will for probate.
7 Neither before the trial court nor on appeal has the proponent of the will attacked the revocation for lack of statutory compliance. Our appellate review is limited to the issues and theories shown by the record to have been actually tendered below. Frey v. Independence Fire Casualty Co.,698 P.2d 17, 20 (Okla. 1985). The record reflects that the proponent of the will challenged the affidavit of revocation on the basis of lack of testamentary capacity and intent and republication of the will.
8 The applicable provisions of these statutes were the same at the time of the refiling of the will herein on November 26, 1980, as in the 1981 codification.
9 The only evidence supporting this ruling is a certified copy of a page of the index of recorded wills prepared and maintained by the Court Clerk for Grady County. This index shows that a purported will of Bessie Shelby was filed on December 14, 1979, without any identity of the person filing the instrument; the index shows the signature of Bessie M. Shelby, dated November 26, 1980, allowing an inference that Bessie Shelby removed the purported will; the index shows the filing of a will of Bessie Shelby on November 26, 1980; but, as the earlier filing, the index does not identify the person filing the will; and, the record is void of any other evidence relating to these filings. This evidence is insufficient to support the trial court's finding of testamentary intent. This evidence is wholly insufficient to support the trial court's conclusion of republication.
10 In re Estate of Lacy, 431 P.2d 366 (Okla. 1967); Rosev. Foster, 288 P.2d 745 (Okla. 1955).
11 Hubbell v. Houston, 441 P.2d 1010 (Okla. 1967); and, Inthe Matter of Estate of Beal, 769 P.2d 150 (Okla. 1989).
12 Id.
13 In re McCurtain's Estate, 377 P.2d 210 (Okla. 1962).