IN THE MATTER OF THE ESTATE OF P. RICHARD MEYER, Deceased. MIRACLES MEYER, Personal Representative for the Estate of P. Richard Meyer, Appellant (Respondent), v. KELLY CATHERINE FANNING, Appellee (Petitioner).
S-15-0134
IN THE SUPREME COURT, STATE OF WYOMING
January 20, 2016
2016 WY 6
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
OCTOBER TERM, A.D. 2015. Appeal from the District Court of Teton County, The Honorable Timothy C. Day, Judge.
Weston W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper, Wyoming. Argument by Mr. Reeves.
Representing Appellee:
J. Denny Moffett of Moffett & Associates, PC, Jackson, Wyoming.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] P. Richard Meyer executed his Last Will & Testament (Will), which complied with the form for self-proving wills set forth in the Wyoming Probate Code.
ISSUE
[¶2] Can a non-self-proving will be proven and admitted to probate when the witnesses to the testator‘s signature cannot recall if the testator signed the will in both their presence?
FACTS
[¶3] Mr. Meyer executed his Will on March 24, 2008, bequeathing all of his property to his fourth wife, Miracles Meyer, and naming her as his personal representative. The Will is signed by Mr. Meyer and witnessed by Deborah Walker and Denise Burkel. All three signatures are in the affidavit form for self-proving wills as set forth in
[¶4] Mr. Meyer passed away on April 1, 2013. On April 25, 2013, Miracles Meyer, his wife at the time of his death, filed a petition to probate the Will. The district court entered an order finding the Will to be self-proving, opened probate, issued letters testamentary, and appointed Mrs. Meyer as personal representative of the estate.
[¶5] Shortly thereafter, Appellee Kelly Fanning, Mr. Meyer‘s child from a previous marriage, filed a petition to revoke the order admitting the Will to probate, asserting it had been improperly executed and was the product of undue influence and fraud.2 She attached to her petition the affidavits of the two subscribing witnesses, Deborah Walker and Denise Burkel-Groth.
[¶7] The second witness and notary, Ms. Burkel-Groth, worked as a legal assistant at another law firm in the same building. Ms. Burkel-Groth had no specific memory of witnessing the Will. She testified, “I have no doubt that it happened, but [I do not remember] any specifics of that day[.]” Ms. Burkel-Groth gave conflicting testimony about her course of conduct as a notary: first testifying in her affidavit that she “often notarized documents that were presented to me in my office, although I was not present while the documents were actually signed[,]” and then modifying that statement in her deposition to explain that she “more often than not” witnessed signatures on documents she notarized, or that she “always” saw the person sign the documents she notarized.
[¶8] The Will contained the following attestation clause:
The undersigned witnesses, sign our names to this instrument, being first duly sworn and do hereby declare to the undersigned authority that P. Richard Meyer signs and executes this instrument as his last Will and that he signs it willingly and that he executes it as his free and voluntary act for the purposes therein expressed, and that each of us, in the conscious presence of P. Richard Meyer, hereby sign this Will as witness to his signing, and that to the best of our knowledge P. Richard Meyer is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
This clause appears immediately below the signature of Mr. Meyer and immediately above the signatures of both Ms. Walker and Ms. Burkel-Groth. Both Ms. Walker and Ms. Burkel-Groth testified that their signatures on the Will are genuine.
[¶9] The parties filed cross-motions for summary judgment. Ms. Fanning asked the district court to find that the Will was not a self-proving will, and could not be proven because it was not possible to satisfy the requirements to prove a non-self-proving will
[¶10] The district court concluded that the Will contained two defects that prevented it from being a self-proving will: first, if “Richard Meyer signed the [W]ill in front of Ms. Walker, but Ms. Burkel-Groth was not present, then both witnesses did not witness the testator‘s signature[;]” second, if both witnesses were not present, there could not have been the “simultaneous” execution and attestation required for a self-proving will. In addition, the district court held that a person could not act as both a witness and a notary; therefore Ms. Burkel-Groth‘s signature in one capacity or another was not valid. There would either not be two attesting witnesses, or there would be no notary, and thus, the Will could not be self-proving.
[¶11] The district court next considered Ms. Fanning‘s contention that the Will was not capable of proof. The court held that if a will is not self-proving, it must be proven by “oral or written testimony of one or more of the subscribing witnesses to the will.
Under the probate code, a will may be admitted to probate upon due execution (1) as a self-proving will; (2) by written testimony as a non-self-proving will; or (3) by deposition testimony as a non-self-proving will. If both subscribing witnesses are deceased or otherwise not available then there may be a fourth method of proof by other evidence. This is not a case where both subscribing witnesses are unavailable.
[¶13] The district court then disposed of Mrs. Meyer‘s argument that a notary‘s signature is presumptive proof that the notary witnessed the signatures, holding that such a presumption is clearly rebutted by the testimony of Ms. Walker that Ms. Burkel-Groth was not present when Richard Meyer and Ms. Walker signed the Will, and by Ms. Burkel-Groth‘s own testimony that she did not always witness the signatures that she notarized.
[¶14] The district court granted Ms. Fanning‘s motion for summary judgment and denied Mrs. Meyer‘s cross motion for summary judgment. This appeal followed.
STANDARD OF REVIEW
[¶15] Motions for summary judgment are made pursuant to Rule 56(c) of the Wyoming Rules of Civil Procedure, which requires that
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
. . . .
. . . We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court‘s ruling.
DISCUSSION
The Statutory Conflict
[¶16] The result of the analysis adopted by the district court and urged upon us by Ms. Fanning is that a “valid” will pursuant to
[¶17] Our review of a district court‘s statutory interpretation is de novo. Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm‘n, 2014 WY 37, ¶ 19, 320 P.3d 222, 228 (Wyo. 2014). In interpreting statutes, we first look to the plain language of the statute to determine the legislature‘s intent. Wyo. Cmty. Coll. Comm‘n v. Casper Cmty. Coll. Dist., 2001 WY 86, ¶¶ 16-17, 31 P.3d 1242, 1249 (Wyo. 2001); Fontaine v. Bd. of Cty. Comm‘rs, 4 P.3d 890, 894 (Wyo. 2000); State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo. 1983). We examine the plain and ordinary meaning of the words used by the legislature to determine whether the statute is ambiguous. Wyo. Cmty. Coll. Comm‘n, 2001 WY 86, ¶¶ 16-17, 31 P.3d at 1249.
A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle [Co. v. Game & Fish Comm‘n, 845 P.2d 1040,] 1043 [(Wyo. 1993)]. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. . . . Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Allied-Signal [v. Wyo. State Bd. of Equalization], 813 P.2d [214,] 219 [(Wyo. 1991)].
Id. at ¶ 17, 31 P.3d at 1249.
[¶18] The Wyoming Probate Code provides that, except in the case of holographic wills, “all wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction.”
Upon the filing of a petition for probate of a will, the court or the clerk may hear it forthwith or at such time and place as the court or clerk may direct, with or without requiring notice, and upon proof of due execution of the will, admit the same to probate.
Such proof may be provided in several ways. If a will is self-proving in compliance with
§ 2-6-205. Proof; wills not self-proving.
(a) If the will is not self-proving, proof of a will may be made by the oral or written testimony of one or more of the subscribing witnesses to the will. If the testimony is in writing, it shall be substantially in the following form, executed and sworn to contemporaneously with the execution of the will or at any time thereafter, whether before or after the date of death of the testator:
In the District Court of Wyoming
In and for ............ CountyIn the Matter of the Estate of)
............ Deceased ) Probate No. ........
State of ............ ) ss Testimony of Subscribing
............ County ) Witness on Probate of WillI, ....., being first duly sworn, state:
I reside in the County of ....., State of .....; I knew the testator on the... day of ....., (year), the date of the instrument, the original or exact reproduction of which is attached hereto, now shown to me, and purporting to be the last will and testament of the said .....; I am one of the subscribing witnesses to said instrument; and on the said date of said instrument, I knew ....., the other subscribing witness; and said instrument was exhibited to me and to the other subscribing witness by the testator, who declared the same to be his last will and testament, and was signed by the testator at ....., in the County
of ....., State of ....., on the date shown in said instrument, in the presence of myself and the other subscribing witness; and the other subscribing witness and I then and there, at the request of the testator, in the presence of said testator and in the presence of each other, subscribed our names thereto as witnesses.
Name of witness ........................................
Address ........................................
Subscribed and sworn to before me this .... day of ....., (year).
Notary Public in and for ............
County of ........................
State of ........................
(SEAL)(b) If it is desired to prove the execution of the will by deposition rather than by use of the affidavit form provided in subsection (a) of this section, upon application the clerk shall issue a commission to some officer authorized by the law of this state to take depositions, with the will annexed, and the officer taking the deposition shall exhibit it to the witness for identification, and, when identified by him, shall mark it as “Exhibit ........” and cause the witness to connect his identification with it as such exhibit. Before sending out the commission the clerk shall make and retain in his office a true copy of the will.
(c) If all of the witnesses are deceased or otherwise not available, it is permissible to prove the will by the sworn testimony of two (2) credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, and that the signatures of the witnesses are in the handwriting of the witnesses, or it may be proved by other sufficient evidence of the execution of the will.
(Emphasis added.)
[¶20] There is ambiguity in the conflict between the requirements for a valid will at
whether [
§ 2-6-205 ] has in effect created its own execution process. If the requirements of the affidavit are substantive formalities, the affidavit will not be useable for a previouslyexecuted will unless it was executed according to all of the stated formalities even though the will would otherwise be valid in Wyoming. Anomalously, the formality procedure outlined in this affidavit is even more demanding than what the self-proven affidavit requires.
Lawrence H. Averill, Jr., The Wyoming Probate Code of 1980: An Analysis and Critique, XVI Land & Water L. Rev. No. 1, 103, 127-28 (1981).
[¶21] Once we determine the language of a statute is ambiguous, “we proceed to the next step, which involves applying general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature.” Powder River Basin Res. Council, 2014 WY 37, ¶ 19, 320 P.3d at 229 (citing Mountain Cement Co. v. S. of Laramie Water & Sewer Dist., 2011 WY 81, ¶ 13, 255 P.3d 881, 886 (Wyo. 2011) (quoting BP Am. Prod. Co. v. Dep‘t of Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005))). “[W]e must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.” Powder River Basin Res. Council, 2014 WY 37, ¶ 19, 320 P.3d at 228 (citing Billis v. State, 800 P.2d 401, 413 (Wyo. 1990); McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo. 1980)). We read the statutes together, and construe statutes relating to the same subject in harmony. Wyo. Cmty. Coll. Comm‘n, 2001 WY 86, ¶¶ 16-17, 31 P.3d at 1249.
In ascertaining the legislative intent in enacting a statute . . . the court . . . must look to the mischief the act was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conditions of the law and all other prior and contemporaneous facts and circumstances that would enable the court intelligently to determine the intention of the lawmaking body.
Parker Land & Cattle Co. [v. Game & Fish Comm‘n, 845 P.2d 1040,] 1044 [(Wyo. 1993)] (quoting Carter v. Thompson Realty Co., 58 Wyo. 279, 131 P.2d 297, 299 (1942)).
Id. at ¶ 18, 31 P.3d at 1249; see also 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutes and Statutory Construction § 45:5 at 35 (7th ed. 2007).
[¶22] The legislature stated its intent in enacting the Probate Code reforms in 1979 was to simplify the probate process to effectuate the intent of the testator. It enacted
(a) [The Probate Code] shall be liberally construed and applied, to promote the following purposes and policies to:
(i) Simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
(ii) Discover and make effective the intent of a decedent in distribution of his property;
(iii) Promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(b) Unless displaced by the particular provisions of this code, the principles of law and equity supplement the code provisions.
(c) This code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
(Emphasis added.)
[¶23] This objective is consistent with the historical setting surrounding the laws’ enactment. See 2B Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutes and Statutory Construction § 49:1 at 7 (7th ed. 2008) (“Statutes are documents having practical effects. It is therefore improper to construe them in the abstract, without taking into consideration the historical framework in which they exist.“). Traditional estate planning law was based on formality and bright-line principles governing the creation, interpretation, and construction of wills. As one commentator has explained:
The act of creating a will has always been somewhat ceremonial: In medieval England, testators often expressed their wishes on the verge of death, as part of their last confession. The march toward modern formality began in the seventeenth century, when the process for determining title to real estate had fallen into shambles. Bogus sales of land -- especially land that the seller claimed to have inherited -- were endemic. To make proof of ownership more reliable,
the British Parliament passed the Statute of Frauds in 1677, thus mandating that wills conveying real property “shall be in Writeing, [sic] and signed by the [testator], . . . and shall be attested and subscribed in the presence of [the testator] by three or fower [sic] credible Witnesses.” This last element -- attestation -- distinguished wills from gifts and contracts, which never need to be witnessed. . . . [T]he Wills Act extended the attestation requirement to all wills. The new legislation also reduced the number of witnesses to two, but added the element that these individuals needed to be “present at the same time” when the testator signed or acknowledged her signature. This stringent approach to will creation migrated across the Atlantic and became enshrined in virtually every American state.
David Horton, Wills Law on the Ground, 62 UCLA L. Rev. 1094, 1104-05 (2015) (citations omitted). Courts charged with construction of wills placed form before substance and refused to consider extrinsic evidence in their interpretations, often resulting in nonsensical outcomes clearly contrary to the testator‘s intent. Id. at 1107 (“[O]nly the words of the document were reliable. It was the will itself -- and not a testator‘s stray statements -- that arose within the prophylactic bubble of the statutory formalities.“).
[¶24] Recognizing that this adherence to formality was unique to the area of the law of wills and probate, scholars began criticizing this approach:
What is peculiar about the law of wills is not the prominence of the formalities, but the judicial insistence that any defect in complying with them automatically and inevitably voids the will. In other areas where legislation imposes formal requirements, the courts have taken a purposive approach to formal defects. . . . The courts have boasted that they do not permit formal safeguards to be turned into instruments of injustice in cases where the purposes of the formalities are independently satisfied.
John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 498-99 (1975) (urging courts to require “substantial compliance” with, instead of strict adherence to, wills act provisions).
[¶25] The confluence of such scholarly criticism and the proliferation of other methods of transferring property on death, such as joint tenancy, life insurance, and trusts, led to re-thinking the formal approach to wills. Id. at 504 (stating “if the will is to be restored to
[¶26] Although it has been renumbered,
[¶27] The 1979 amendments included the addition of § 2-6-405 (renumbered
[¶28] In Wyoming, when the legislature enacted
[¶29]
[O]ur longstanding rule is that repeals by implication are not favored and will not be indulged if there is any other reasonable construction. One asserting implied repeal bears the burden of demonstrating beyond question that the legislature intended that its later legislative action evinced an unequivocal purpose of affecting a repeal. Furthermore, it must be shown that the later statute is so repugnant to the earlier one that the two cannot logically stand together, or that the whole subject of the earlier statute is covered by the later one having the same object, clearly intending to prescribe the only rules applicable to the subject.
Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 11, 61 P.3d 1229, 1233 (Wyo. 2003) (quoting Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, 367 (Wyo. 2001)). The legislature specifically reasserted this rule when it enacted the 1979 and 1980 statutory amendments, and included the statement that “[t]his code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.”
[¶30] Taking into account the legislature‘s stated intent to simplify and expedite the probate process so as to effectuate the testator‘s intent,
[¶31] The legislative objective when it enacted the 1979 and 1980 revisions to Wyoming‘s Probate Code was to simplify the law rather than complicate it. The addition of
It is a basic rule of statutory construction that courts may try to determine legislative intent by considering the type of statute being interpreted and what the legislature intended by the language used, viewed in light of the objects and purposes to be accomplished. . . . Furthermore, when we are confronted with two possible but conflicting conclusions, we will choose the one most logically designed to cure the mischief or inequity that the legislature was attempting to accomplish.
Hede, 2005 WY 24, ¶ 6, 107 P.3d at 162-63 (internal quotation marks and citation omitted).
[¶32] Our holding is consistent with the less formalistic approach to proving wills this Court has taken since the 1979 and 1980 revisions. In In re Estate of Altman, a self-proving will was challenged because one of the will‘s witnesses testified that “he did not sign the will in the presence of the testator or [the other witness] but that it was brought downstairs to his store by appellee where he signed it.” 650 P.2d 277, 280 (Wyo. 1982). The district court held a jury trial, at which the other witness and the will‘s proponent both testified as to the will‘s signing. The jury determined they were more credible than the recanting witness, and this Court affirmed, holding that it was the jury‘s role to determine the credibility of witnesses. Id. In In re Estate of Zelikovitz, 923 P.2d 740 (Wyo. 1996), the testator‘s signature on a will codicil was witnessed by one person who saw the testator sign and signed as a witness; by one person who signed as a notary public, but who did not see the witnesses sign the will, id. at 742; and by a third person who signed as a witness but “did not actually witness the decedent sign the codicil.” Id. at 744. This Court agreed that the third person could not qualify as a witness because she had not seen the testator sign the codicil. However, this Court went on to say that the person who signed as a notary could serve as a witness, and that “[t]here is no requirement in our statutes that the witnesses sign in the presence of one another[.]” Id. at 744 (emphasis added). That holding is consistent with our interpretation that the
[¶33] In Matter of Estate of Croft, 713 P.2d 782 (Wyo. 1986), the will‘s contestants pointed to a mistake in the will codicil, which referred to a will with the incorrect date. Id. at 784. This Court approved the approach taken by the district court, “[t]o fulfill its obligation to liberally construe and apply the Wyoming Probate Code so as to promote the purpose and policy thereof through discovering and making effective the intent of Croft (
Proving a Will
[¶34] Wyoming‘s Probate Code directs the clerk of court to admit a will to probate “upon proof of due execution.”
[¶35] The due or lawful execution of a will is described in
[¶36] A self-proving will that complies with
[¶37] If a will is not self-proving, the proponent of the will has the burden of presenting evidence in order to establish its “due execution” before it will be admitted to probate.
[¶38]
[¶39] In addition to proof by affidavit,
We will not insert language into a statute that the legislature omitted. A basic tenet of statutory construction is that omission of words from a statute is considered to be an
intentional act by the legislature, and this Court will not read words into a statute when the legislature has chosen not to include them.
Stutzman v. Office of Wyo. State Eng‘r, 2006 WY 30, ¶ 16, 130 P.3d 470, 475 (Wyo. 2006) (citations omitted).
[¶40]
[¶41] Subsection (c) allows for proof of a will when the subscribing witnesses are “not available.”
[¶42] The practice of proving a will through the testimony of a subscribing witness was recognized by this Court in In re Stringer‘s Estate, 80 Wyo. 389, 420, 343 P.2d 508, 520 (1959), reh‘g denied and opinion modified by 345 P.2d 786 (Wyo. 1959), where we stated:
While the Code provides that certain things are necessary to the making of a valid will, it does not prescribe how those things shall be proved. It leaves that to the general rules of evidence. There is provision, it is true, that if the attesting witnesses are alive, and present in the county, they must, in the event of a contest, be called. This is a very natural and just provision, for in such case the failure of the proponent of a will to call his attesting witnesses would be a very suspicious circumstance. But there is no statutory declaration, and no principle of law, to the effect that a will executed in due form shall go for naught unless an attesting witness, after the lapse of many years, shall continue to recollect everything material that occurred at the time he subscribed his name to it. Such a rule would make the validity of the will dependent, not upon the disposing mind of the testator, nor his freedom from duress, undue influence, or fraud, nor upon his clear expression of his intention in the body of the instrument, nor upon its conformity to the form and ceremony prescribed by statute, but upon the fullness, accuracy, and persistency of the recollection of one of the persons who signed it as a witness. Such a rule cannot be maintained either upon principle or precedent. What constitutes a sufficient execution of a will is prescribed by the statute. What constitutes sufficient proof of such execution is not so prescribed, and is a different question, -- a question to be solved by the general principles of evidence. *** Where an attesting witness has no recollection as to certain matters connected with the making of the will, the case is, upon principle, in the same condition as where he is dead, insane, or absent[.]
(Citations omitted and emphasis added.) That ruling, based upon the sound reasoning that an otherwise valid and duly executed will should not fail by virtue of the subscribing witnesses’ imperfect or absent memory years after affixing their signature to the will, is still applicable today.
[¶43] The legislature has made it clear that the current Probate Code shall be applied to “[s]implify and clarify” the law, and “[d]iscover and make effective the intent of a decedent.”
[¶44] Under the Wyoming and Federal Rules of Evidence
a witness who testifies to not remembering the subject matter of his statement is unavailable. A witness may either truly lack recollection or for a variety of reasons, including concern of a possible perjury prosecution, feign lack of recollection. In either event, the witness is unavailable to the extent that he asserts lack of recollection of the subject matter of the prior statement, even if the witness recalls other events.
30C Michael H. Graham, Federal Practice and Procedure § 7072 at 354-55 (2011 Interim ed.); see also
Meyer‘s Will
[¶46] The district court concluded that Mrs. Meyer could not make out a prima facie case that the Will was self-proving, despite self-proving language contained therein. We agree that the Will in this case is not self-proving. To be self-proving, a will must contain attestations by the testator and two witnesses that the will was executed as a “free and voluntary act” by the testator and that the witnesses signed the will as witnesses “in the presence and hearing of the testator.”
[¶47] Other courts addressing the issue have determined that a notary who signs a will is either a notary or a witness, but cannot be both. See In re Estate of Alfara, 703 N.E.2d 620, 627 (Ill. App. Ct. 1998); In re Estate of Price, 871 P.2d 1079, 1083 n.4 (Wash. Ct. App. 1994); Smith v. Neikirk, 548 S.W.2d 156, 158 (Ky. Ct. App. 1977); Ferguson v. Ferguson, 47 S.E.2d 346, 352 (Va. 1948). This authority is consistent with the guidance provided to notaries by the Wyoming Secretary of State. The Wyoming Notary Handbook provides that a notary should “[a]bsolutely not!” witness her own signature, explaining: “Since a notary must always be an objective and independent witness, notarizing your own signature defeats the very purpose of notarization. Don‘t do it.” Wyo. Sec‘y of State, Wyoming Notary Handbook, at 16, http://soswy.state.wy.us/Forms/Publications/NotaryHandbook.pdf (last visited Jan. 8, 2016).
[¶48] We hold that a notary may not simultaneously act as a notary and a witness. The notary must be one or the other. If Ms. Burkel-Groth‘s signature were to be considered a notarial certificate, there would not be two attesting witnesses and the Will would be invalid. However, because Ms. Burkel-Groth‘s signature appears as a witness, it will be considered as such; the fact that she signed as a notary has no legal significance. See In re Estate of Zelikovitz, 923 P.2d at 744 (“There is no provision in the Wyoming Statutes, nor any ruling in our cases, that would inhibit the notary public from serving as a witness . . . although that does foreclose the prospect of having a self-proving will
[¶49] The district court further concluded that Mrs. Meyer could not prove the Will by any other method because she could not establish that the witnesses signed the Will in each other‘s presence. We have determined that conclusion was in error and we therefore reverse. We remand to the district court for a determination of whether Mrs. Meyer can make a prima facie case of the Will‘s validity by some other method, pursuant to
[¶50] In addition, the district court will need to determine whether the subscribing witnesses are available for purposes of
[¶51] If the district court determines that Mrs. Meyer can establish a prima facie case of due execution of the Will, the burden would then shift to Ms. Fanning to present “some evidence worthy of credence” that the Will was not duly executed. First Nat‘l Bank v. Ford, 30 Wyo. 110, 119, 216 P. 691, 694 (1923); Prima Facie Case for Proponent in
CONCLUSION
[¶52] A will‘s proponent must prove its due execution before it can be admitted to probate. In most cases, proof of due execution requires proof that the will was (1) in writing or typed; (2) witnessed by two competent witnesses; and (3) signed by the testator or by some person in his presence and by his express direction, in compliance with
[¶53] The district court erred when it concluded that in all cases where a will is not self-proving, the proponent must establish that the witnesses signed the will in the presence of each other and in the presence of the testator. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.
Notes
Id.; see also Smith v. Neikirk, 548 S.W.2d 156, 158 (Ky. Ct. App. 1977) (“The record of testimony indicates that witness Runk was within the presence of the testator and the other witnesses at all times. The fact that she may have had her back turned at the moment of execution does not disqualify her as a witness. All that is required to be proved by the subscribing witness is the identification of the signature. . . . It has been repeatedly held that substantial rather than a literal compliance with the statute . . . will suffice. This Court has also indicated that where the technical requirements for execution of wills have been substantially complied with, the will should be probated.” (citations omitted)).This Restatement adopts the conscious-presence test, which recognizes that a person can sense the presence or actions of another without seeing the other person. If the testator and the witnesses are near enough to be able to sense each other‘s presence, typically by being within earshot of one another, so that the testator knows what is occurring, the presence requirement is satisfied.