367 P.3d 629
Wyo.2016Background
- P. Richard Meyer executed a will (2008) signed by him and two witnesses (Deborah Walker; Denise Burkel‑Groth). The will included self‑proving affidavit language and a notary block signed by Burkel‑Groth.
- Burkel‑Groth later notarized the will and had her name as both witness and notary; Walker and Burkel‑Groth later gave affidavits/deposition testimony with memory lapses and inconsistencies about witnessing the testator’s signature or each other signing.
- Mrs. Meyer (wife) petitioned to probate the will; the court initially admitted it as self‑proving. Kelly Fanning (testator’s child) moved to revoke probate alleging improper execution, undue influence, and fraud, attaching the witnesses’ statements.
- The district court ruled the will was not self‑proving (because a notary cannot notarize her own witnessing and because witnesses could not recall signing in each other’s presence) and further held the will could not be proven under §2‑6‑205 because subscribing witnesses could not testify they saw the testator sign in each other’s presence. Summary judgment for contestant was granted.
- The Wyoming Supreme Court reversed: it held the will was not self‑proving (notary/witness conflict) but rejected the district court’s conclusion that §2‑6‑205 requires proof that witnesses saw the testator sign in each other’s presence in all non‑self‑proving contexts; that requirement applies only to proof by affidavit under §2‑6‑205(a). The case was remanded for further proceedings to determine whether a prima facie case of due execution can be made by other available proof (oral testimony, deposition, or other evidence if witnesses unavailable).
Issues
| Issue | Plaintiff's Argument (Fanning) | Defendant's Argument (Meyer) | Held |
|---|---|---|---|
| Whether a will that meets §2‑6‑112 can nonetheless be impossible to prove under §2‑6‑205 | §2‑6‑205(a) imposes added execution formalities (witnesses must have seen testator sign and each other); because witnesses lack recollection, the will cannot be proven | §2‑6‑112 establishes valid execution; §2‑6‑205(a)’s stricter affidavit form applies only to that affidavit method, not to all proof methods | The court held §2‑6‑205(a)’s stricter attestation requirement applies only to proof by affidavit; it does not add substantive execution formalities to §2‑6‑112 or bar other proof methods (oral/deposition/other evidence) |
| Whether a notary may simultaneously serve as a subscribing witness and notarize the same will | (Implicit) The notary’s certificate would support self‑proving status | Meyer's proponent argued the will’s self‑proving language sufficed despite notary signing | Court held a notary cannot validly act as both notary and witness for purposes of creating a self‑proving will; Burkel‑Groth’s notary certificate is invalid, so the will is not self‑proving |
| Whether witness memory lapses render a subscribing witness "unavailable" so other proof under §2‑6‑205(c) is permitted | Fanning argued witnesses are available and §2‑6‑205(a) blocks probate | Meyer argued memory lapses can render witnesses effectively unavailable and other evidence may be used | Court held that a witness who lacks recollection about the material events may be "unavailable" for purposes of §2‑6‑205(c), allowing other proof; district court must evaluate availability and credibility on remand |
| Appropriate standard and burden at probate if prima facie case is made | Contestant maintains lack of required affidavit proof defeats probate | Proponent maintains prima facie proof may be made by other methods, shifting burden | If proponent makes prima facie showing of due execution by available methods, burden shifts to contestant to produce some evidence that will was not duly executed; then other contest grounds remain available (e.g., undue influence) |
Key Cases Cited
- In re Estate of Altman, 650 P.2d 277 (Wyo. 1982) (upholding admission where jury credited witnesses despite one recanting memory)
- In re Estate of Zelikovitz, 923 P.2d 740 (Wyo. 1996) (notary may serve as witness though doing so defeats self‑proving status; no statutory bar to notary acting as witness)
- Matter of Estate of Croft, 713 P.2d 782 (Wyo. 1986) (permitting extrinsic evidence to effectuate testator's intent and avoid formality defeating intent)
- Stringer’s Estate, 343 P.2d 508 (Wyo. 1959) (a subscribing witness’s lack of recollection on certain matters can be treated like unavailability; other evidence admissible)
- In re Will of McCauley, 565 S.E.2d 88 (N.C. 2002) (common‑law rule that a will should not be lost solely because attesting witnesses later forget; other credible evidence may establish execution)
- First Nat’l Bank v. Ford, 216 P. 691 (Wyo. 1923) (establishes shift in burden: once proponent makes prima facie case of due execution, contestant must present evidence contesting execution)