Lawrence, Wayman C., III

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RECENT DECISIONSWILLS-REQUIREMENTS FOR ADMISSION OF WILL TO PROBATE-QUANTUM OF PROOFUpon a hearing to admit a will to probate, two of the three at-testing witnesses asserted that the testator neither signed nor acknowl-edged his signature in their presence and that they did not recall seeinghis signature on the will. The third witness testified that the testator andthe three witnesses were all present in a group when the testator signed,followed by the three witnesses, and that the testator was then of fullage, sound mind and memory and not under any restraint. The will wascomplete and regular on its face. The Probate Court's refusal to admitthe will to probate was reversed by the Ohio Supreme Court. Held, 4-3,where a purported will apparently complies with all formalities on itsface, a probate court may not determine as a fact whether such will hasbeen attested and executed according to law, but is merely required todetermine whether there is substantial evidence tending to prove suchfact, i.e., evidence which will enable a finding of that fact by reasonableminds. In re Estate of Lyons, 166 Ohio St. 207, 141 N.E. 2d 151(1957).This inquiry will be limited to problems concerning the admissionof a will to probate, arising from the following statutory provision:The probate court shall admit a will to probate if it ap-pears that such will was attested and executed according to law.and if it appears that the testator at the time of executingsuch will was of full age, of sound mind and memory, andnot under restraint.1 (Emphasis added.)It is important to distinguish the matter of admission to probate from acontest action, which is a jury proceeding in the Common Pleas Courtto contest the validity of a will which has already been admitted toprobate.2In reaching its decision, the Court relied upon In re Vill ofHathaway3 and In re Will of Elvin,4 and upon its interpretation of theapplicable statutory provisions. The Hathaway case holds that for a willto be admissible to probate, the evidence need show only a prima fadeI OHIo REV. CoDe §2107.18 (1953). As to the formal requirements for execu-tion, "Except oral wills, every last will and testament . . .shall be signed at theend by the party making it .. .and be attested and subscribed in the presence ofsuch party, by two or more competent witnesses who saw the testator subscribe,or heard him acknowledge his signature." OHIo REV. CODE §2107.03 (1953).2 A recent amendment to the Probate Code accentuates this distinction:"If it appears that the instrument purporting to he a will is not entitled to probate,the court shall enter an interlocutory order denying probate of such instrument andshall continue the matter for further hearing. . . .Thereupon, the court shallrevoke its interlocutory order denying probate to such instrument and admit thesame to probate or enter a final order refusing to probate such instrument. A finalorder refusing to probate such instrument may be reviewed on appeal." OHIO REV.CODE .2107.1l81. (Emphasis added.)34 Ohio St. 384 (1854).1957]OHIO STATE LAW JOURNALcase in favor of its validity. In the Elvin case, after the two attestingwitnesses said that the testatrix was under undue influence when sheexecuted the will, the Probate Court found that the testatrix was underrestraint and refused to admit the will to probate. After noting thepresence of some favorable evidence in the record, the Supreme Courtobserved that there arose an inference that the testatrix acted of her ownvolition, and reversed the Probate Court on the principle that:A prima fade case in favor of the validity of the will isall that is required, and when all the evidence shows as amatter of law that such a case is made out, the court mustadmit the will to probate, even though the evidence is con-flicting.5Equating "prima facie case in favor of validity" with "evidence whichwill enable a finding of that fact by reasonable minds," and concludingthat no words of the statute purported to give any authority to theProbate Court to determine as a fact whether a will has been properlyattested and executed, the majority in the principal case reversed theProbate Court for acting as a trier of fact in disbelieving the third wit-ness, instead of admitting the will to probate on the ground that reason-able minds could have believed him.The dissenting opinion properly questions the meaning of theclause "if it appears" as used in the applicable statutes,6 for the inter-pretation of this clause is the key to the decision. Revised Code Section2107.181 was enacted in 1953 to obviate uncertainty created by the oldlaw under which it was possible for an estate to be completely adminis-tered as an intestate estate only to have the administration set aside yearslater and the estate readministered under the will.7 Although thissection provides for a "final order" by the probate court, it does nothingto alter the standard by which the court is to govern its action; indeed,it merely borrows the ambiguous wording "if it appears" from RevisedCode Section 2107.18,8 which sets forth the requirements for admissionto probate.The dissent seeks to distinguish the Elivn case, relied upon by themajority, by pointing out that it dealt with the question of undue in-fluence whereas the instant case concerns the formal requisites of a will.Not only was the principle enunciated by the court in that case broadenough to cover the present facts, but it is also supported by a long lineof authority following Hathaway:All that can be required on probate is a "prima fadecase," and when such "appears" by substantial evidence the4 146 Ohio St. 448, 66 N.E. 2d 629 (1946).5 Id. at 454, 66 N.E. 2d at 632.6 Supra notes 1 and 2.7 14 OHIo ST. L.J. 373 (1953).8 This does not change the superseded General Code section "in any materialrespect." In re Schulz' Estate, 102 Ohio App. 486, 492, 136 N.E. 2d 730, 735 (1956).[Vol. 18RECENT DECISIONSduty is mandatory on the part of the probating court to admitthe will to probate. ... 'The dissent further suggests that the words "if it appears" con-template the exercise of judgment by the probate court. This is certainlytrue, but the judgment simply consists of determining whether there issufficient evidence tending toward the validity of the will to justify afinding of validity by reasonable minds. As its final observation, thedissent contends that Revised Code Section 2107.181 "contemplatesmore than just listening on the part of the probate judge." This formu-lation does not diminish the validity of the conclusion, set forth above,that the purpose of this section is to forestall further cases of readminis-tration under a will after a complete intestate administration. Themajority further refutes the dissent's position here, observing that thissection does not purport to give the Probate Court authority to determineas a fact whether a will has been properly executed, and that it wouldbe difficult to conclude that the legislature intended to do so since nonotice is provided for "the kinds of persons who might be adverselyaffected by the will," and no appeal is provided from an order admittingit to probate.A better understanding of the application of the principles involvedmay be furthered by a brief consideration of the requisite quantum ofproof in specific instances. In In re Schulz' Estatel0 attesting witness Astated that she did not know she was signing a will and did not see thetestator or witness B sign. Witness B said that she could not rememberthe occasion but had often witnessed wills for her husband, an attorney,and had made it a practice never to sign unless she saw the testator sign.The Probate Court's denial of admission of the will to probate wasreversed by the Court of Appeals, which held that the presumption ofdue execution which arises on proof of the signatures accompanied by acomplete attestation clause is very strong:It was not necessary in order to probate this will thatboth attesting witnesses orally testify that all of the statutoryrequirements regarding the execution of the will had beencomplied with; but where, as here, all signatures to the in-strument are genuine, the attesting clause is in due form, andthere is oral testimony by one of the witnesses that she knew itwas the will of the testatrix she was signing, and the testatrixwas of full age, of sound mind and memory and not underany restraint, a pinrin facie case is established."9 McWilliams v. Central Trust Co., 51 Ohio App. 246, 250, 200 N.E. 532, 554(1935). Accord, Roosa v. Wiekward, 90 Ohio App. 213, 105 N.E. 2d 454 (1950);In re Schulz' Estate, 102 Ohio App. 486, 136 N.E. 2d 730 (1956) ; In re Blickens-derfer, 28 Ohio Op. 42, 13 Ohio Supp. 93 (C. P. 1944); In re Will of Watts,19 Ohio N.P. (n.s.) 225, 27 Ohio Dec. 87 (C.P. 1916); In re Wood's Will,67 N.E. 2d 11 (Ohio Prob. 1945); In re Halterman, 27 Ohio Op. 521, 12 OhioSupp. 150 (Prob. 1943).10 102 Ohio App. 486, 136 N.E. 2d 730 (1956).'l Id. at 492, 136 N.E. 2d at 735.19571OHIO STATE LAW JOURNALIn In re Wood's Will 2 the court held that it could give full weight tothe testimony of one witness to the will, disregarding the testimony ofthe other, and proceeded to order the will probated on the basis of thetestimony of one witness. In the absence of testimony of attestation,it will be presumed that the testator signed in the presence of the wit-nesses or acknowledged his signature to them.'3 If no legal disability isaffirmatively shown, it will be presumed that a decedent had the capacityto make a will and that it was made free from restraint, thus establishinga prima facie case of legal responsibility. 4The ease with which a prima facie case may be established is em-phasized by Roosa v. Wickward.'3 The will in that case met all thestatutory requirements on its face but the only surviving witness testifiedthat she did not see the testator's signature when she signed and couldnot have seen it because of the manner in vhich the paper was folded,and that the other witness was not there when she signed. The ProbateCourt was reversed for refusing to admit the will to probate as notexecuted according to law, the Court of Appeals saying:It appears the Probate Court did not confine its considera-tion to whether a prima facie case in favor of the validity ofthe will has been established, but went beyond that field ofinquiry into one reserved for ultimate determination by a juryunder the lawof contest.An analysis of the cases shows that if the will as introduced is inproper form and the signatures have been proved, the slightest additionalevidence in favor of the will's validity will suffice to make a prima faciecase thereof in spite of damaging evidence to the contrary, even ifoffered by one or more of the attesting witnesses. If this generalizationis accurate, the testimony of the third witness in the instant case, com-bined with the introduction of a will in proper form and with proof ofthe signatures, constituted prima facie proof, notwithstanding that theother two witnesses presented a totally conflicting picture of the cir-cumstances surrounding the will's execution.In light of the preceding considerations, it is clear that the decisionin the principal case properly reconciles the existing case and statutorylaw on the matter, presenting sound principles upon which the probatejudge may ground his action, to wit: he must admit the will to probateunless he determines as a matter of law that there- is no evidence uponwhich reasonable minds could base a finding of validity.Wayman C. Lawrence III12 67 N.E. 2d. 11 (Ohio Prob. 1945). Accord, In re Will of Watts, supranote 9.13 Carpenter v. Denoon, 29 Ohio St. 379 (1876).14Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (192S); In re Stocker,26 Ohio N.P. (n.s.) 112 (Prob. 1926).15 90 Ohio App. 213, 105 N.E. 2d 454 (1950).16 Id. at 219, 105 N.E. 2d at 458. -[Vol. 18

Wills--Requirements for Admission of Will to Probate--Quantum of Proof

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Wills--Requirements for Admission of Will to Probate--Quantum of Proof

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