364 So.3d 755
Miss. Ct. App.2021Background
- Luke Beard executed a typewritten will in 1987 leaving his entire estate to his grandson, Antonio Christmas; the will bears two subscribing witnesses: Robert Jones Sr. and Robert Jones Jr.
- Beard died in 2001; Diane Christmas (his only child) filed estate proceedings in 2002 and again in 2014 without knowledge of the will.
- Antonio found the will in 2003 but did not attempt probate until 2018 after learning of estate actions; by trial both subscribing witnesses were deceased (Jones Sr. predeceased the petition; Jones Jr. died before trial).
- At trial Antonio authenticated Beard’s signature and presented a lawyer who authenticated Jones Jr.’s signature; no testimony authenticated Jones Sr.’s signature and no attestation clause appears separate from the attesting paragraph.
- The chancery court dismissed the probate petition for insufficient attestation evidence; the Court of Appeals reversed, holding the will was sufficiently proven and remanding for probate.
Issues
| Issue | Plaintiff's Argument (Antonio) | Defendant's Argument (Diane) | Held |
|---|---|---|---|
| Whether evidence was sufficient to admit Beard’s 1987 will to probate | The will’s attesting language plus proof authenticating the testator’s signature and at least one witness signature satisfied Miss. Code § 91-7-7; no separate attestation clause or two authenticated witness signatures required | Insufficient proof because no living attesting witnesses and proponents failed to authenticate the signatures of the subscribing witnesses (and the will lacks a formal separate attestation clause); probate barred by defective attestation | Reversed: § 91-7-7 permits proving due execution by authenticating the testator’s handwriting and the handwriting of at least one subscribing witness; Antonio met that standard so the will should be admitted to probate. |
Key Cases Cited
- In re Estate of Holmes, 101 So.3d 1150 (Miss. 2012) (discusses requirements for attesting witness testimony)
- Williams v. Morehead, 77 So. 658 (Miss. 1918) (addresses need to authenticate signatures to prove execution of a lost will)
- Estate of Willis v. Willis, 207 So.2d 348 (Miss. 1968) (refused probate where signatures of attesting witnesses were not authenticated)
- Gaston v. Gaston, 358 So.2d 376 (Miss. 1978) (upheld refusal to probate where signature authenticity was not established)
- Tinnin v. First United Bank of Miss., 502 So.2d 659 (Miss. 1987) (recognizes deference to a testator’s right of testation)