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Pickens v. Estate of Fenn

Supreme Court of Alabama

September 29, 2017

Janice Pickens
v.
Estate of Donald Harrison Fenn, deceased

         Appeal from Elmore Probate Court (No. 2016-183)

          SELLERS, Justice.

         Janice Pickens appeals from the order of the Elmore Probate Court denying the admission to probate of a will on the basis that the will was not signed by at least two witnesses as required by § 43-8-131, Ala. Code 1975. We reverse and remand.

         I. Facts

         Donald Harrison Fenn died on June 27, 2016. Fenn left a will, purportedly executed by him on November 24, 2015, leaving all of his property to Pickens and naming her as his personal representative.[1]

         On July 6, 2016, Jackson B. Dismukes, one of Fenn's friends, filed a petition for letters of administration, asserting that Fenn had died with assets in Alabama but that he had no will. On that same day, the probate court granted Dismukes's petition and issued him letters of administration for Fenn's estate.

         On July 7, 2016, Pickens filed a petition seeking to probate the will purportedly executed by Fenn. Pickens further moved the probate court to revoke the letters of administration it had issued to Dismukes. Dismukes challenged the admission of the will to probate on the basis that the will did not contain the signature of a second witness as required by § 43-8-131.

         On October 31, 2016, the probate court conducted a bench trial for the purpose of determining whether the will could be admitted to probate and, more specifically, whether the will complied with the requirements of § 43-8-131. The will was in writing; it was signed by Fenn; it contained the signature of one attesting witness, Tracy Stroud Causey; and it contained the signature and seal of Janet M. Ingram, a duly commissioned notary public. It was Pickens's position at the hearing that even though Ingram signed the notarization of Fenn's and Causey's signatures in her capacity as a notary public, her signature on the will satisfied the statutory requirements of a witness under § 43-8-131. The probate court heard the testimony of both Causey and Ingram. Ingram testified that, on November 24, 2015, Fenn came into the law office where she was working and inquired whether she would notarize "something" for him. Ingram stated that she took Fenn to her office, where he handed her a document. Ingram testified that she did not know that the document was a will but that she did notice that the document required the signature of a witness; accordingly, Ingram called Causey to her office to witness Fenn sign the document. Ingram admitted that the document contained a signature line for a second attesting witness; however, she stated that she did not recall seeing the additional signature line at the time she had Causey sign the document as a witness. Finally, Ingram testified that she did not sign the document as a witness but, rather, in her capacity as a notary public. Causey testified that she witnessed Fenn sign the document and that she witnessed Ingram notarize the document.

         After hearing the testimony, the probate court entered an order refusing to admit the will to probate, on the basis that Ingram had signed the will in her capacity as a notary, not as a witness, and that, therefore, the requirement of § 43-8-131 calling for two witnesses to a will was not satisfied. Pickens appealed. See § 12-22-21, Ala. Code 1975.

         II. Standard of Review

         "This Court reviews de novo [a probate] court's interpretation of a statute, because only a question of law is presented." Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala. 2003).

         III. Discussion

         A. The Will

         Pages two and three of the will containing the signatures of Fenn, Causey, and Ingram read as follows:

"IN WITNESS WHEREOF, I, Donald Harrison Fenn, the Testator, sign my name to this instrument as my last will and testament this 24 day of Nov. 2015, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and testament, and that I sign it willingly, and that I execute it as my free and voluntary act and deed for the purposes therein expressed, and that I am ...

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