In re Estate of Griffith v. Griffith
| Docket Number: | 2008-IA-01557-SCT Linked Case(s): 2008-M-01557-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-25-2010 Opinion Author: Lamar, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Findings of fact - Knowledge of attesting witnesses - Section 91-5-1 - Formal or constructive publication Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson and Randolph, JJ. Non Participating Judge(s): Kitchens, J. Dissenting Author : Pierce, J., with separate written opinion. Dissent Joined By : Chandler, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 09-04-2008 Appealed from: SIMPSON COUNTY CHANCERY COURT Judge: J. Larry Buffington Disposition: The chancellor rejected the probate of the decedent's alleged last will and testament. Case Number: 06-085 P1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | In the Matter of the Estate of Howard Griffith, Deceased: Garland Griffith |
JAY L. JERNIGAN |
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| Appellee: | Jimmy Griffith and Jerry Griffith | F. KIRK NELSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Findings of fact - Knowledge of attesting witnesses - Section 91-5-1 - Formal or constructive publication |
| Summary of the Facts: | Garland Griffith filed a petition to probate the purported last will of his brother, Howard Griffith. A copy of the purported, nonholographic will was attached to the petition. Under the will, Howard devised and bequeathed unto Garland his “home and its furnishings and furniture, together with the five acres, more or less, upon which it is situated . . . cash, bank accounts and certificates of deposit, and . . . [a] Maxima automobile, [a] truck, [a] Jeep automobile, [a] Ford 2000 tractor and [a] lawn mower . . . . [and] two mobile homes and all furnishings and contents situated therein[.]” Howard also devised and bequeathed to his sons, Jimmy L. Griffith and Jerry H. Griffith (Contestants), “that portion of [his] property upon which Griffith’s Barber Shop is located . . . and all of [the] contents, fixtures and furniture in said business . . . . [and the] rest remainder and residue of [his] estate[.]” The Contestants filed a caveat against probate, alleging that their father died without leaving a valid will, in that the purported will is the result of undue influence and is not supported by sworn witnesses. The chancellor entered an order rejecting the probate of the will. Garland appeals. |
| Summary of Opinion Analysis: | Issue 1: Findings of fact The chancellor found that the two attesting witnesses were unaware that they had witnessed Howard’s purported last will and testament. The testimony of attesting witnesses denying or impeaching the execution of the will is to be considered and may be sufficient in some cases to prevent probate, but it is to be viewed with caution and suspicion and it is usually entitled to little credence. Further, if either or both attesting witnesses deny the execution, then the proponents may introduce secondary evidence of the execution. The chancellor had before him conflicting evidence concerning whether the witnesses had knowledge that they were witnessing Howard’s will. This presented a question of fact for the court, and the chancellor resolved the conflict by ruling that the hearing testimony was the most credible. Trial courts are entitled to deferential review in matters involving questions of fact. Issue 2: Knowledge The chancellor ruled that attesting witnesses to a will must have knowledge of the purpose of their attestation. Section 91-5-1 provides that a will must be attested by at least two witnesses. Attestation includes not only the mental act of observation, but also includes the manual one of subscription. In other words, not only must the witness observe the testator, he must also affix his signature to the document. An attesting witness must have some knowledge that the document being signed is, in fact, the testator’s last will and testament. Therefore, the two witnesses in this case were not “attesting” witnesses under section 91-5-1 but merely subscribing witnesses. Section 91-5-1 requires that attesting witnesses to a will know the purpose of their attestation, even when the testator signs the will in their presence. Either formal or constructive publication will ensure that this knowledge is imparted to the attesting witnesses. Publication is the act or acts of the party, by which he manifests that it is his intention to give effects to the paper, as his last will and testament. It is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and they are to be the witnesses thereto. In this case, the purported will was not duly executed, as the witnesses had no knowledge that the document they signed was the decedent’s last will and testament. |
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