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__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
IN THE MATTER OF THE ESTATE )
OF: )
)
SAMUEL J. DELLINGER, SR., )
DECEASED, ) Indiana Supreme Court
) Cause No. 71S05-0305-CV-208
Appellant (Petitioner Below), )
) Indiana Court of Appeals
v. ) Cause No. 71A05-0111-CV-506
)
1ST SOURCE BANK, as Personal )
Representative, )
)
Appellee (Respondent Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-9906-EU-49
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
August 26, 2003
BOEHM, Justice.
We hold that a single signature of each of two witnesses in the
presence of each other and of the testator may serve to witness a will and
also to self-prove it. That is what occurred here. Accordingly, we affirm
the trial court’s holding that the will in this case was properly admitted
to probate.
Factual and Procedural Background
On May 18, 1999, Samuel Dellinger, Sr., met with his attorney, John
Smarrella, in St. Joseph Catholic Hospital where Dellinger was a patient.
Dellinger directed preparation of a new will that would disinherit
Dellinger’s children and leave his house to his sister and his entire
remaining estate to a trust for his sister during her lifetime and to St.
Monica’s Catholic Church after her death. When Smarrella returned to the
hospital the next day, Dellinger was unable to speak clearly and could not
sign the new will on his own. Through hand signals, he indicated that his
attorney was authorized to sign the will for him and Smarrella did so.
Smarrella and two others who were present also signed the document.
Dellinger died on May 20, 1999.
The will was admitted to probate on June 3, 1999. Dellinger’s
daughter, Robin Conrad, filed a will contest, contending that the will was
not properly witnessed and that Dellinger was not competent to execute a
will on the day before he died. After a bench trial, the trial court
upheld the will. Conrad appealed and the Court of Appeals reversed,
concluding that the will was not properly witnessed. We previously granted
transfer and now affirm the trial court.
Standard of Review
Conrad raises only the claim that the will was not properly
witnessed. She does not contest Dellinger’s competency. Nor does she
raise any claim based on the attorney’s signing for Dellinger. As the
party contesting the will, Conrad had the burden of proof below. She is
appealing from a general judgment of the trial court. Accordingly, we view
the evidence in the light most favorable to the appellee. Ind. Dep’t
Envtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001).
I. Validity of the Will
The will is a five-page document. The first four pages consist of
dispositive provisions and a signature line for “Samuel J. Dellinger, Sr.,
Testator” bearing a handwritten “Samuel J. Dellinger, Sr., by John C.
Smarrella.” The fifth page is manually signed “Samuel J. Dellinger, Sr.,
by John C. Smarrella” above a signature line subscribed “Samuel J.
Dellinger, Sr.” Under the heading “Witnesses,” the fifth page also bears
the signatures of Smarrella in his individual capacity and two other
individuals. The fifth page begins with typewritten text above all four of
these signatures. It reads, in its entirety:
We, the undersigned Testator and the undersigned witnesses,
respectively, whose names are signed to the foregoing instrument,
declare that: (1) the Testator executed the foregoing instrument,
consisting of five (5) typewritten pages, as his Will; (2) in the
presence of all witnesses, the Testator signed the foregoing Will; (3)
the Testator executed the Will as his free and voluntary act for the
purposes expressed in it; (4) each of the witnesses, in the presence
of the Testator and of each other, signed the Will as witness; (5) the
Testator was of sound mind when the Will was executed; and (6) to the
best knowledge of each of the witnesses, the Testator was, at the time
the Will was executed, eighteen (18) or more years of age.
Indiana Code section 29-1-5-3(a) provides:
a) The execution of a will, other than a nuncupative will, must be by the
signature of the testator and of at least two (2) witnesses as
follows:
1) The testator, in the presence of two (2) or more attesting
witnesses, shall signify to them that the instrument is the
testator’s will and either:
A) sign the will;
B) acknowledge the testator’s signature already made; or
C) at the testator’s direction and in the testator’s
presence have someone else sign the testator’s name.
2) The attesting witnesses must sign in the presence of the
testator and each other.
There was testimony that Dellinger, by hand signals, indicated that
the document was his will and directed his attorney to sign it for him.
This satisfied the condition of subsection (a)(1) by meeting the
alternative means of signature by the testator afforded by subsection
(a)(1)(C). The witnesses testified that they signed page five in
Dellinger’s presence and in the presence of each other. This satisfied the
condition of subsection (a)(2). Because both subsections (1) and (2) of
section 3(a) are satisfied, the will was properly executed and attested.
Conrad advances the ingenious but ultimately flawed contention that
the signatures on page five constituted an attempt at self-proof, but did
not evidence witnessing of the will. The Court of Appeals agreed. We do
not. First, and most straightforwardly, the signatures appear on page five
of the instrument. That page recites that Dellinger “executed the
foregoing instrument, consisting of five (5) typewritten pages, as his
Will.” This plainly includes page five in that count and thereby asserts
that page five is a part of the will. The signatures of the witnesses
appear on that page. We therefore, syllogistically, have a will, signed by
Dellinger, and signed by the witnesses, all in the presence of each other.
That satisfies all formal conditions of subsections (a)(1) and (2). If one
accepts the testimony of the attorney and the witnesses as we must in an
appeal from a general judgment, these facts also establish that the
witnesses believed they were witnessing Dellinger’s will, and believed he
wanted them to do so.
We find this rather simple approach to the issue at hand to be
persuasive. Conrad responds that the last page of the will merely served
to self-prove the will, but did not witness it. But subsection (d) of the
statute allows an attestation clause to serve also as a self-proving
clause. The statute expressly provides that a will is self-proving if its
attestation clause indicates the facts necessary to prove the will:
(d) This subsection applies to all wills, regardless of the date a
will is executed. A will is presumed to be self-proved if the will
includes an attestation clause signed by the witnesses that indicates
that:
1) The testator signified that the instrument is the testator’s
will;
2) In the presence of at least two (2) witnesses, the testator
signed the instrument or acknowledged the testator’s
signature already made or directed another to sign for the
testator in the testator’s presence;
3) The testator executed the instrument freely and voluntarily
for the purposes expressed in it;
4) In the presence of all other witnesses, is executing the
instrument as a witness;
5) The testator was of sound mind when the will was executed;
and
6) The testator is, to the best of the knowledge of each of the
witnesses, either:
A) At least eighteen (18) years of age; or
B) A member of the armed forces or the merchant marine of
the United States or its allies.
Conrad is correct in asserting that the specific language of page five
is designed to be a self-proving clause. Indeed, it verbatim matches some
forms suggested for this purpose by respected practice groups. See John A.
Gardner, Boilerplate Will Provisions, Indiana Continuing Legal Education
Forum Estate Planning Workshop 20-23 (1993). But the statute says a will
may be self-proving “if the will includes an attestation clause . . . that
indicates [self-proving requirements].” I.C. 29-1-5-3(a). This plainly
contemplates that the same clause may both attest and self-prove.
Moreover, it is well settled that the statute does not require any
particular language to constitute an attestation as long as it is clear
that attestation is what is intended by the witnesses. Barrkiclow v.
Stewart, 163 Ind. 438, 440, 72 N.E. 128, 129 (1904); Modlin v. Riggle, 399
N.E.2d 767, 770 (Ind. Ct. App. 1980) (“A full and detailed attestation
clause is not necessary under Indiana statutes or cases.”) (citations
omitted). Nor does language in the document between the operative
provisions of the will and the signatures of the attesting witnesses
necessarily invalidate the attestation. Potts v. Felton, 70 Ind. 166, 172-
73 (1880) (finding a will properly executed even though “a memorandum of
three lines, signed by the testator’s wife, intervened between Webster C.
Potts’ signature to his will and the signature of the witness, James H.
Potts”). Therefore, the mere presence of the self-proving language between
the will and the signatures does not compel the conclusion that the
witnesses were not attesting to the will. Even some language inconsistent
with provable facts may precede the attesting witnesses’ signatures but not
necessarily invalidate attestation. For example, a will was held to be
properly executed even though the attestation clause stated that the
testator had signed both pages when he had not signed the first page. In
re Estate of Parlock, 486 N.E.2d 567, 570 (Ind. Ct. App. 1985). The
inconsistency did not invalidate the will because it did not relate to a
statutorily required element of execution. Id. The court pointed out that
all of the statutory requirements had been met and “[n]o evidentiary basis
exists which might indicate that the will was unduly executed.” Id. The
same is true here. Seeking to self-prove with the same signature does not
negate an intent to attest as witness.
We recognize that language in the document may negate an intent that a
signature constitute an attestation by a witness. To give a trivial
example to illustrate the point, if a signature appears under the
following: “I acknowledge receipt of a copy of the foregoing will,” it
presumably would not serve as an attesting witness. But that is not the
case here. The language of the fifth page plainly evidences an intent to
self-prove, but it also refers to the signatories as “witnesses” and
recites the essential facts for attestation, i.e., that each witness signed
in the presence of the testator and each other.
Conrad points out that the clause preceding the witnesses’ signatures
seems to assert that the witnesses had already signed the will when they
signed page five. In fact, the signatures appear only on page five. This
discrepancy does not invalidate their signatures as witnesses. The
witnesses were not required to attest to the will before this clause, and
minor inconsistencies are not sufficient to defeat the plain intent of the
witnesses. See Potts, 70 Ind. at 172; Estate of Parlock, 486 N.E.2d at
570. The witnesses met all of the statutory requirements by signing the
will as “witnesses” in the presence of Dellinger and of each other.
Therefore, the witnesses properly attested to the will and the trial
court’s rejection of Ms. Conrad’s challenge to the will was correct.
Finally we note that the General Assembly recently enacted legislation
amending the statute at issue to explain more clearly the methods for
properly witnessing wills. 2003 Ind. Legis. Serv. 4 (West). To address
the issue of the effect of language inserted between the terms of a will
and witness signatures, the amendment revises subsection (c) to make it
clear that attestation or self-proving language preceding the witnesses’
signatures does not invalidate the will. The subsection now reads in
relevant part, “[a] will that is executed substantially in compliance with
subsection (b) will not be rendered invalid by the existence of (1) an
attestation or self-proving clause or other language; or (2) additional
signatures; not required by subsection (b).” The legislation also adds
section 3.1 to the statute, which says: “[i]f the testator and witnesses
sign a self-proving clause that meets the requirements of subsection (c) or
(d) at the time the will is executed, no other signatures of the testator
and witnesses are required for the will to be validly executed and self-
proved.” This language addresses exactly the situation at issue here and
clearly provides that one set of signatures following a self-proving clause
can serve both to attest and self-prove a will.
If the statute as it currently reads had been in effect when
Dellinger’s will was executed, there would be no question that the will was
properly witnessed. We think that the 2003 amendments were simply the most
recent in a long line of changes to the statute that were meant to
eliminate the need for live witness testimony to prove the validity of a
will signed by the testator and witnesses in the presence of each other.
In 1978, the legislature first provided for wills to be self-proving and
require no live testimony to prove execution. 1978 Ind. Acts 132, Sec. 2.
In 1983, the legislature amended the statute to make clear that wills could
be executed, attested, and made self-proving with one set of signatures.
1983 Ind. Acts 273, Sec. 1. In the years that followed, the legislature
twice attempted to clarify the requirements for attesting and self-proving
a will. 1985 Ind. Acts 273, Sec. 1; 1989 Ind. Acts 262, Sec. 1. All of
these amendments were intended not to make substantive changes, but to
dispel any remaining confusion over the intended meaning of the statute.
They do not imply that wills executed in the manner used in this case were
invalid. Rather, they evidence a consistent legislative intent to simplify
this process and eliminate unnecessary procedures.
II. Self-Proving
Conrad argues that the will is not self-proving. In the order
originally admitting the will to probate, the trial court concluded that
the will is self-proving. In the hearing held on Conrad’s will contest,
the trial court, after listening to testimony of the witnesses, again
concluded that the will is valid. Because that conclusion was in a general
judgment, we affirm it if the evidence supports the facts necessary to
support the conclusion of law. As a result, whether Dellinger’s will was
self-proving is a moot issue because it was independently proved at trial.
However, because amici curiae suggest the importance of resolving this
issue, we address it.
We hold that Dellinger’s will was properly made self-proving under
subsection (d) of the statute, quoted above. A will is self-proving under
this section because, by signing this clause and claiming that all of the
above facts are true, the testator and witnesses assert that the
circumstances surrounding the execution of the will were proper. This
allows the will to be admitted to probate without the testimony of any of
the subscribing witnesses. By signing the fifth page bearing the quoted
language, the witnesses asserted all of the facts required by statute.
Accordingly, the will is self-proving.
Conrad argues that inaccuracies in this clause invalidate it as a
self-proving clause. She first argues that the statement that the
witnesses signed the will is erroneous. This proceeds from the assumption
that the signatures to page five were not attesting witnesses and/or the
fifth page is not part of the will. We disagree for the same reason we
concluded that the witnesses’ attestation was valid: the witnesses did sign
the self-proving page, which was a part of the will.
Conrad also argues that the statement in the self-proving clause that
the testator signed the will is incorrect because Mr. Dellinger did not
actually sign the will, but had his attorney do so. We think a recitation
that the testator signed is, under these circumstances, fairly taken as
embodying a signature by another at the direction and in the presence of
the testator as subsection (a)(1)(C) permits. To the extent it is an
inconsistency, like that in the attestation clause at issue in Estate of
Parlock, this inconsistency does not invalidate the self-proving clause
because it does not involve a statutory element of self-proof. The statute
requires only that the clause “indicate” certain facts for a will to be
self-proving and does not require any specific language to indicate these
facts. The clause properly met the statutory requirements by asserting all
of the facts required by statute to show that the execution of the will was
proper. Therefore, the clause is effective and the will is self-proving.
Conclusion
The will was validly attested and made self-proving pursuant to
Indiana Code section 29-1-5-3(a). The judgment of the trial court
rejecting Conrad’s Motion to Contest is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.