Smith v. Smith
348 S.W.3d 63
| Ky. Ct. App. | 2011Background
- Bill J. Smith attempted to make a non-holographic will on Feb 4, 2008 in the presence of Connie Smith and a notary, with Bill signing and one witness (the notary) signing; Connie filed to probate in district court which denied probate due to two-witness requirement; Connie then sought probate in circuit court which admitted the document as a valid will based on substantial compliance; Appellants (Amy Smith, Ramona Ann Smith-Brown, and Bill Smith, Jr.) appealed arguing improper application of the two-witness requirement and substantial compliance; court treated the matter on a motion for judgment on the pleadings, reviewing legal questions de novo; Kentucky law requires either two witnesses to subscribe in the testator’s presence or a valid holographic will, with “shall” language mandating two witnesses; the court distinguished Smith v. Neikirk and Birch v. Jefferson County Court and rejected substantial compliance as to a non-holographic will subscribed by only one witness; the court reversed the circuit court and remanded with instructions to dismiss Connie’s petition; ultimately holding that one subscribing witness cannot satisfy KRS 394.040 and that the document cannot be admitted to probate as Bill J. Smith’s will.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two witnesses must subscribe in the testator's presence | Appellants: two witnesses must subscribe in presence; one witness is insufficient | Connie: substantial compliance possible given circumstances | No; two witnesses must subscribe in presence; one witness cannot satisfy KRS 394.040. |
| Whether substantial compliance can cure a missing witness signature | Appellants: substantial compliance does not apply | Circuit court: substantial compliance justifies probate in similar factual settings | No; substantial compliance does not apply to a non-holographic will with only one witness. |
| Whether presence of the testator during execution can substitute for witness signatures | Appellants: presence of two persons suffices to show intent | Connie: presence of two persons plus signing by testator satisfies formality | Presence alone cannot substitute for the witnesses' signatures; required signatures must appear in presence of testator and of each other. |
| Role of prior case law (Smith v. Neikirk, Birch, etc.) in determining validity | Appellants: those cases support substantial compliance or technical adherence | Connie: these cases support circuit court's result | Court rejects these authorities to permit probate under substantial compliance when only one witness signs. |
| Whether the lack of another will affects validity | Appellants: lack of other wills underscores intent should validate the will | Connie: statutory terms control regardless of alternative wills | Statutory defects cannot be cured by absence of competing wills. |
Key Cases Cited
- Rutledge v. Wiggington, 166 Ky. 421, 179 S.W. 389 (1915) (non-holographic will invalid when only one witness attested)
- Pirtle v. Kirkpatrick, 297 Ky. 785, 181 S.W.2d 425 (1944) (non-holographic will invalid when not properly attested)
- Birch v. Jefferson County Court, 244 Ky. 425, 51 S.W.2d 258 (1932) (witnesses must subscribe in the presence of testator; mere presence insufficient)
- Weiss v. Hanscom, 305 Ky. 687, 205 S.W.2d 485 (1947) (substantial compliance limited; cannot override mandatory provisions)
- Rybolt v. Futrell, 296 Ky. 158, 176 S.W.2d 269 (1943) (substantial compliance allowed where defects do not violate express language)
- Miller's Ex'r v. Shannon, 299 S.W.2d 103 (Ky.1957) (will execution strictness; technicalities controlled by statute)
- Smith v. Neikirk, 548 S.W.2d 156 (1977) (execution substantially complied; distinguishable facts)