Jacqueline M. Rothwell and Franklin L. Molitor
Ronald T. Molitor, Barbara K. Vogelpohl, and Steve Molitor
from Madison Circuit Court (CV-08-953)
M. Rothwell and Franklin L. Molitor ("the
contestants") appeal from a judgment entered by the
Madison Circuit Court ("the circuit court") in
favor of Ronald T. Molitor, Barbara K. Vogelpohl, and Steve
Molitor ("the proponents") in a will contest. We
reverse the circuit court's judgment.
April 24, 2008, Ronald T. Molitor ("Ronald") filed
in the Madison Probate Court ("the probate court")
a petition to probate the will of Lilly Molitor, the mother
of the proponents and the contestants. On June 9, 2008, the
probate court granted letters testamentary to Ronald.
25, 2008, the contestants filed in the circuit court a
verified petition requesting that the administration of the
estate be removed from the probate court to the circuit
court; they also attacked the will, alleging, among other
things, that Lilly had lacked testamentary capacity. The
contestants named Ronald, Barbara K. Vogelpohl
("Barbara"), and Lilly's estate as defendants
in the will contest. The defendants answered the petition on
August 18, 2008. Ronald, Barbara, and the estate subsequently
filed a counterclaim for attorney's fees, and the
contestants replied to that counterclaim. Ronald, Barbara,
and the estate then filed an amended answer.
24, 2010, the circuit court severed the administration
proceedings from the will contest and dismissed the estate
from the will contest.
September 14, 2011, the contestants amended their verified
petition to add Steve Molitor ("Steve") as a
defendant in the will contest. Steve answered the petition on
November 28, 2011.
was eventually held on November 26, 2018. At the trial, the
signature page of Lilly's will, as well as the alleged
self-proving affidavit, were introduced into evidence.
Without objection from the proponents, the contestants
introduced testimony pointing out that the alleged
self-proving affidavit contained an error. Specifically, the
name of one of the witnesses was listed as the testator in
the notary's acknowledgment. Furthermore, the second
witness and the name of the notary were listed as the two
witnesses on the notary's acknowledgment.
February 25, 2019, the circuit court entered a judgment
stating, in pertinent part:
"The matter ... that was set for trial before this Court
was a contest by the [contestants] of Lilly H. Molitor's
Last Will and Testament, based in part on the allegation of
lack of testamentary capacity, undue influence and coercion.
These allegations relate to the Will executed by Lilly
Molitor[, ] the parties' Mother[, ] which in effect
disinherited the [contestants].
"When the validity of a will is being challenged, the
trial court is guided by the general principle: 'Instead
of indulging suspicion or conjecture to destroy the validity
of wills, the courts are bound to support them against mere
suspicion or conjecture; bound to support them, when any
theory or hypothesis maintaining them, is as probable as that
which is suggested to defeat them.' Barnewall v.
Murrell, 108 Ala. 366, 368, 18 So. 831, 841 (1895).
Lastly, the purpose of requiring the signature of two
witnesses 'is to remove uncertainty as to the execution
of wills and safeguard testators against frauds and
impositions.' Culver v. King, 362 So.2d 221, 222
"'The law presumes that every person has the
capacity to execute a will, and the burden is on the
contestant to prove the lack of testamentary capacity. To
possess testamentary capacity, one must be able to recall the
property to be devised, the desired disposition of the
property, and the persons to whom he or she wishes to devise
the property. If the testator knows his estate and to whom he
wishes to give his property and understands that he is
executing a will, he has testamentary capacity. A person may
execute a valid will, even if he or she is not competent to
transact ordinary, everyday affairs.' Ex parte
Helms, 873 So.2d 1139[, 1147] (Ala. 2003).
"The [contestants] also allege undue influence. The law
in the state of Alabama is clear that one alleging dominance
of a child over a parent must prove that 'time and
circumstances have reversed the order of nature, so that the
dominion of the parent has not merely ceased, but has been
displaced, by subservience to the child.' Hawthorne
v. Jenkins, 182 Ala. 255, 260, 62 So. 505, 506 (1913).
Thus, for the burden of proof to shift, it is clear that our
cases require proof of more than a reversal of the
traditional roles of parent as care giver and child as care
recipient; they require proof that the parent's will has
become subordinate to the will of the child. It is also clear
from our cases that the mere relationship of parent and child
alone, even when coupled with some activity on the part of
the child in securing the preparation of legal papers for the
parent, is not sufficient to prove subservience on the part
of the parent, so as to shift to the child the burden of
proving an absence of undue influence. Furrow v.
Helton, 13 So.3d 350 (Ala. 2008).
"The Court heard testimony from all witnesses and upon
consideration of the pleadings, the testimony and Alabama
law, the Court finds ... the Last Will and Testament of Lilly
Molitor to be valid and enforceable. As a result thereof, it
is Ordered, Adjudged and Decreed by this Court that this case
be returned to the Probate Court of Madison County, Alabama
for further proceedings."
March 20, 2019, the contestants filed a postjudgment motion;
that motion was denied by operation of law on June 18, 2019.
See Rule 59.1, Ala. R. Civ. P. The contestants filed
their notice of appeal to the Alabama Supreme Court on July
19, 2019; that court subsequently ...