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Rothwell v. Molitor

Alabama Court of Civil Appeals

December 13, 2019

Jacqueline M. Rothwell and Franklin L. Molitor
v.
Ronald T. Molitor, Barbara K. Vogelpohl, and Steve Molitor

          Appeal from Madison Circuit Court (CV-08-953)

          MOORE, JUDGE.

         Jacqueline 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.

         Procedural History

         On 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.

         On June 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.

         On June 24, 2010, the circuit court severed the administration proceedings from the will contest and dismissed the estate from the will contest.

         On 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.

         A trial 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.

         On 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 (Ala. 1978).
"'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."

         On 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 ...


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