Probate Court Evidentiary and Procedural Potential Pitfalls
| Publication year | 2021 |
| Pages | 0052 |
By Judge William D. Motlow and R. Bradley Phillips
Introduction
There is a misconception among some attorneys that the Rules of Evidence do not apply during proceedings in the probate courts of this state. Rule 1101 of the Rules states the "rules of evidence apply in all proceedings in the courts of Alabama." Further, Ala. Code § 12-13-12 affirms that the Rules are applicable in probate court proceedings. From a practical standpoint, however, how strictly the Rules are enforced varies from probate court to probate court. In most counties, the probate judge is not an attorney. While there certainly are a number of outstanding non-attorney probate judges in this state, the Rules routinely cause confusion and argument among even the most experienced of attorneys. As such, if you find yourself representing a client in a probate court where you do not ordinarily practice, it is a good idea to inquire about the expectations of that particular judge and his general adherence to the Rules.
Wills
Everyone needs a will, if for no reason other than to ensure that our loved ones are not burdened with securing a bond and filing seemingly endless reports and accountings with the court. However, any old document setting forth a decedent's desires for the distribution of her assets upon her passing will not suffice, or at least will not suffice without a fight.
Most common questions regarding wills can be answered by a thorough review of the Alabama Probate Procedures Act, codified at Title 43, Chapter 8 of the Code of Alabama. Any person who is 18 years of age or older and who is of sound mind may make a will.1 Wills executed in this state, other than the few which may have been executed so long ago as to make them subject to an earlier Alabama statute, are required to be in writing, signed by the testator or in the testator's name by some other person in the testator's presence taking direction from the testator, and signed by at least two other persons, each of whom must have either witnessed the testator sign the document or must have witnessed the testator's acknowledgement that she signed the document.2 Best practice demands that an attorney overseeing the execution of a will follow the letter of the law, lest he find himself in a pickle when a will contest is lodged and a subscribing witness testifies that, in reality, the attorney's assistant merely walked the at-issue will down the hallway into his office, asking for a signature on a witness line on the will. The careful attorney will additionally take precaution to avoid allowing a person who is or may become interested in the estate from subscribing as a witness to the execution of the will.
While there are certainly other methods of proving a will, the attorney looking to assist in the seamless transition of a testator's assets to her intended heir(s) will additionally demand that a will be properly attested to and notarized. Because the proponent of a will carries the burden of making a prima facie case that it was properly executed, the careful practitioner will prefer to cause to be drafted a self-proved will.3 A self-proved will4 additionally contains a sworn acknowledgement by the testator and affidavits by the subscribing witnesses. If a will is self-proved, its proper execution is presumed and it shall be, absent proof of forgery or fraud, admitted to probate without additional evidence of validity.5
What if a will is alleged to have existed at one time but is now lost? The Alabama Supreme Court recently held6 that the proponent of a lost will must prove: (1) the existence of a properly executed will instrument, (2) the loss or destruction of that instrument, (3) that the testator never revoked the instrument, and (4) the substance and effect of the contents of the instrument. It is also not uncommon for an original will to be lost but a photocopy of it can be produced. In such a situation, the first and fourth prongs of the aforementioned test are met by the photocopy, but the proponent of the photocopy retains the burden of proving the original will was not lost or destroyed with the intention of revoking it, which will be the court's presumption.
Simply turning a will over to the probate court for recording, without more, will not result in the issuance of letters testamentary. Surrender of the will must be accompanied by some evidence that the proponent of the will desires that it be admitted to probate.7 Any executor, devisee, or legatee named in a will, or any person interested in the estate or who has custody of the will, may propound the will upon the proper probate court for admission.8 If requested to do so by a person interested in the decedent's estate, one who has custody of a decedent's will must deliver...
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