Milum v. Marsh

53 S.W.3d 234, 2001 Mo. App. LEXIS 1261, 2001 WL 803868
CourtMissouri Court of Appeals
DecidedJuly 18, 2001
DocketNo. 23841
StatusPublished
Cited by2 cases

This text of 53 S.W.3d 234 (Milum v. Marsh) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milum v. Marsh, 53 S.W.3d 234, 2001 Mo. App. LEXIS 1261, 2001 WL 803868 (Mo. Ct. App. 2001).

Opinion

RAHMEYER, Judge.

Judy Ann Milum (“Appellant”) brought suit to contest the self-proving will of her legal father, Eugene D. Lacey (“Lacey”). [236]*236The trial court held the will to be valid and found in favor of the beneficiaries of the will (“Respondents”). We affirm.

On July 19, 1984 Lacey executed a will in the presence of two witnesses pursuant to the provisions of § 474.337,1 the statute allowing for self-proving wills.2 Charles Wantuck, an attorney in Springfield, Missouri, notarized the will and, in conformance with § 437.337, signed and attached a self-proving certificate to the will. Although Lacey named Appellant in the will, he left nothing to her. He left the majority of his estate to a charitable trust.

Appellant admits that § 474.337 was properly followed and the will is a self-proving will, but contends that the beneficiaries failed to present a prima facie case of due execution and testamentary capacity. Specifically, Appellant argues that the self-proving statute was enacted so that wills could be admitted to probate with ease in the absence of a will contest. Appellant contends that once the will contest action was filed, the judgment admitting the will to probate was vacated and the burden was back on the beneficiaries to establish a prima facie case of due execution and testamentary capacity. Appellant contends this is a case of first impression concerning whether or not the enactment of § 474.337 changed the requirement for a prima facie case in a will contest action.

At trial both of the witnesses to the will testified and identified their own signatures. Neither witness knew Lacey nor did they have an independent recollection of Lacey coming into the bank where the will was executed and witnessed. Mr. Wantuck is deceased. There were no other witnesses regarding the signing of the will. There was no other identification of Lacey or his signature at the time of execution. Appellant contends that there was insufficient evidence to show whether the person who executed the will was really Lacey or whether Lacey had testamentary capacity. Appellant argues if the self-proving will did not make a prima facie case of due execution and testamentary capacity, then Respondents have failed to meet their burden of proof.

In a court-tried case the judgment of the trial court will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. KJC [237]*237Development Corporation v. Land Trust of Jackson County, 6 S.W.3d 894, 896 (Mo. banc 1999). On an appeal from a court-tried case, we defer to the trial court’s findings of fact, given the trial court’s superior ability to judge the credibility of witnesses. Brawley v. McNary, 811 S.W.2d 362, 365 (Mo. banc 1991). The power to set aside a judgment on the ground that it is “against the weight of the evidence” must be exercised with caution and only with the firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).3

Appellant claims that our dicta in Hugenel v. Estate of Keller, 867 S.W.2d 298 (Mo.App. S.D.1993) supports her assertion that the self-proving clause of § 474.337 does not satisfy the burden of showing due execution and testamentary capacity. The issue in Hugenel was the trial court’s finding that the decedent did not have testamentary capacity to make a will. This court noted that the standard of review was of particular significance. Id. at 302. The decedent had been continuously declared incompetent by orders of the probate court. The trial court, noting the statutory presumption that the decedent was incompetent at the time of the making of the will because of the prior judgments of incompetence, found that the defendants had not overcome the presumption of incapacity. Id. at 305. This court upheld the trial court’s finding; however, as an additional reason for supporting the finding of the trial court, this court stated:

There is some indication that the self-proving clause contained in the will may not have any effect beyond expediting admission to probate....
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Assuming, without deciding, that the self-proving clause of the will provides a prima facie showing of not only due execution but also testamentary capacity....

Id. at 305. Appellant now contends that because neither witness at trial could testify that the person who signed the will was, in fact, Lacey, the self-proving clause had no effect and Respondents have failed in their burden of proving due execution.

In response, Respondents cite to Stroup v. Leipard, 981 S.W.2d 600 (Mo.App. W.D.1998) for the proposition that a prima facie case is made for due execution if the will is self-proving under § 474.337. The issue in that case was whether the trial court erred in amending an earlier judgment to admit a self-proving will into probate. The defendants admitted that there were no issues regarding due execution or the decedent’s testamentary capacity regarding the earlier will. In support of the decision upholding the admission of the earlier self-proving will into probate, the court noted:

It is not clear in Missouri whether a self-proved will establishes a prima facie case for due execution and also a prima facie case for testamentary capacity. However, our courts have resorted to the Commissioners’ Comments accompanying the Uniform Probate Code when interpreting statutes based on that code.... An analysis of the statute and the provisions of the Uniform Probate Code and Comments upon which it was based convinces this court that the self-proving certificate creates a prima facie case of due execution of the will.

Id. at 605 (citations omitted). The court, after noting that the legislature could have prohibited the use of self-proving wills in will contest proceedings but did not do so, [238]*238stated that the plain and ordinary meaning of the language of § 473.065 permitted the admission of self-proved wills to probate without the necessity of further proof without limitation, and, thus, a prima facie case had been made in the will contest case. Id. at 606. The court did not address whether a prima facie case of testamentary capacity had been made because that issue was admitted in the pleadings.

The issue squarely in front of this court is whether, in a will contest, a self-proving will establishes a prima facie case that the will was duly executed and that the decedent had the testamentary capacity at the time of the will’s execution. We find that it does.

We agree with the sound reasoning of the court in Stroup in relying upon the Commissioner’s Comment to § 2-504 of the Uniform Probate Code when it holds that a self-proving will makes a prima facie case for due execution.

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Bluebook (online)
53 S.W.3d 234, 2001 Mo. App. LEXIS 1261, 2001 WL 803868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milum-v-marsh-moctapp-2001.