in-the-matter-of-the-estate-of-p-richard-meyer-deceased-miracles-meyer , 2016 WY 6 ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 6
OCTOBER TERM, A.D. 2015
January 20, 2016
IN THE MATTER OF THE ESTATE OF
P. RICHARD MEYER, Deceased.
MIRACLES MEYER, Personal
Representative for the Estate of P. Richard
Meyer,
Appellant
S-15-0134
(Respondent),
v.
KELLY CATHERINE FANNING,
Appellee
(Petitioner).
Appeal from the District Court of Teton County
The Honorable Timothy C. Day, Judge
Representing Appellant:
Weston W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper,
Wyoming. Argument by Mr. Reeves.
Representing Appellee:
J. Denny Moffett of Moffett & Associates, PC, Jackson, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] P. Richard Meyer executed his Last Will & Testament (Will), which complied
with the form for self-proving wills set forth in the Wyoming Probate Code. Wyo. Stat.
Ann. § 2-6-114 (LexisNexis 2015). However, when the Will was filed for probate, the
witnesses could not recall having seen the testator or each other sign the Will. Further,
one of the witnesses was also the notary. The district court found that the Will was not
self-proving, and that, because the only witness who could recall the Will signing did not
remember seeing the other witness sign the Will, there was no way the Will could be
proven. The district court granted summary judgment in favor of the Will contestant and
against the Will proponent. The Will proponent appeals, and we reverse and remand.
ISSUE
[¶2] Can a non-self-proving will be proven and admitted to probate when the witnesses
to the testator’s signature cannot recall if the testator signed the will in both their
presence?
FACTS
[¶3] Mr. Meyer executed his Will on March 24, 2008, bequeathing all of his property
to his fourth wife, Miracles Meyer, and naming her as his personal representative. The
Will is signed by Mr. Meyer and witnessed by Deborah Walker and Denise Burkel. All
three signatures are in the affidavit form for self-proving wills as set forth in Wyo. Stat.
Ann. § 2-6-114, and they are notarized by Denise Burkel. 1
[¶4] Mr. Meyer passed away on April 1, 2013. On April 25, 2013, Miracles Meyer, his
wife at the time of his death, filed a petition to probate the Will. The district court
entered an order finding the Will to be self-proving, opened probate, issued letters
testamentary, and appointed Mrs. Meyer as personal representative of the estate.
[¶5] Shortly thereafter, Appellee Kelly Fanning, Mr. Meyer’s child from a previous
marriage, filed a petition to revoke the order admitting the Will to probate, asserting it
had been improperly executed and was the product of undue influence and fraud.2 She
attached to her petition the affidavits of the two subscribing witnesses, Deborah Walker
and Denise Burkel-Groth.
1
Denise Burkel married after the Will was executed and her name is now Denise Groth. We will refer to
her as Denise Burkel-Groth or Ms. Burkel-Groth.
2
Ms. Fanning subsequently filed her first amended verified petition, which contained additional
allegations not pertinent to the issues on appeal. The district court denied Mrs. Meyer’s renewed motion
to dismiss Ms. Fanning’s petition.
1
[¶6] In 2008, Ms. Walker was a part-time bookkeeper in the Meyer and Williams law
office, where the Will was executed. Ms. Walker testified by affidavit that “Richard
Meyer asked me to sign his Will but did not show me any pages other than the last page,
which he and I both signed.” According to her affidavit, she had no recollection of Ms.
Burkel-Groth being present or signing the Will, but did recall that Mr. Meyer signed the
Will and that Mrs. Meyer was present. Ms. Walker also stated, “I specifically recall that I
did not witness anyone other than myself and Richard Meyer sign the Will, and I did not
see anyone notarize the Will.” Ms. Walker later testified in her deposition that she had
no memory of seeing Mr. Meyer sign the Will or whether his signature was on the Will
prior to her signature.
[¶7] The second witness and notary, Ms. Burkel-Groth, worked as a legal assistant at
another law firm in the same building. Ms. Burkel-Groth had no specific memory of
witnessing the Will. She testified, “I have no doubt that it happened, but [I do not
remember] any specifics of that day[.]” Ms. Burkel-Groth gave conflicting testimony
about her course of conduct as a notary: first testifying in her affidavit that she “often
notarized documents that were presented to me in my office, although I was not present
while the documents were actually signed[,]” and then modifying that statement in her
deposition to explain that she “more often than not” witnessed signatures on documents
she notarized, or that she “always” saw the person sign the documents she notarized.
[¶8] The Will contained the following attestation clause:
The undersigned witnesses, sign our names to this instrument,
being first duly sworn and do hereby declare to the
undersigned authority that P. Richard Meyer signs and
executes this instrument as his last Will and that he signs it
willingly and that he executes it as his free and voluntary act
for the purposes therein expressed, and that each of us, in the
conscious presence of P. Richard Meyer, hereby sign this
Will as witness to his signing, and that to the best of our
knowledge P. Richard Meyer is eighteen years of age or
older, of sound mind, and under no constraint or undue
influence.
This clause appears immediately below the signature of Mr. Meyer and immediately
above the signatures of both Ms. Walker and Ms. Burkel-Groth. Both Ms. Walker and
Ms. Burkel-Groth testified that their signatures on the Will are genuine.
[¶9] The parties filed cross-motions for summary judgment. Ms. Fanning asked the
district court to find that the Will was not a self-proving will, and could not be proven
because it was not possible to satisfy the requirements to prove a non-self-proving will
2
contained in Wyo. Stat. Ann. § 2-6-205. Mrs. Meyer asked the court to admit the Will to
probate because it met the requirements for a valid will in Wyo. Stat. Ann. § 2-6-112.3
[¶10] The district court concluded that the Will contained two defects that prevented it
from being a self-proving will: first, if “Richard Meyer signed the [W]ill in front of Ms.
Walker, but Ms. Burkel-Groth was not present, then both witnesses did not witness the
testator’s signature[;]” second, if both witnesses were not present, there could not have
been the “simultaneous” execution and attestation required for a self-proving will. In
addition, the district court held that a person could not act as both a witness and a notary;
therefore Ms. Burkel-Groth’s signature in one capacity or another was not valid. There
would either not be two attesting witnesses, or there would be no notary, and thus, the
Will could not be self-proving.
[¶11] The district court next considered Ms. Fanning’s contention that the Will was not
capable of proof. The court held that if a will is not self-proving, it must be proven by
“oral or written testimony of one or more of the subscribing witnesses to the will. Wyo.
Stat. § 2-6-205(a). If both witnesses are deceased or unavailable, a different method of
proof may be used. § 2-6-205(c).” The court also determined proof by both affidavit and
deposition pursuant to § 2-6-205 requires that the testimony of a witness establish that
“the will was signed by the witnesses ‘in the presence of said testator and in the presence
of each other.’ Wyo. Stat. § 2-6-205(a).” The court found that, because neither witness
could testify that they saw Mr. Meyer sign the Will, or that they signed the Will “in the
presence of said testator and in the presence of each other,” the Will could not be proven.
The court held that, although they are not expressly stated in those subsections, these
requirements also applied to an attempt to prove a will by deposition under § 2-6-205(b),
or by oral testimony under § 2-6-205(a), construing the statutes in pari materia. The
court rejected Mrs. Meyer’s attempt to introduce other evidence, such as her own
affidavit, 4 determining that such proof could only be considered when both witnesses are
unavailable, under § 2-6-205(c).
3
Except as provided in the next section [§ 2-6-113], all wills to be
valid shall be in writing, or typewritten, witnessed by two (2) competent
witnesses and signed by the testator or by some person in his presence
and by his express direction. If the witnesses are competent at the time
of attesting the execution of the will, their subsequent incompetency
shall not prevent the probate and allowance of the will. No subscribing
witness to any will can derive any benefit therefrom unless there are two
(2) disinterested and competent witnesses to the same, but if without a
will the witness would be entitled to any portion of the testator’s estate,
the witness may still receive the portion to the extent and value of the
amount devised.
Wyo. Stat. Ann. § 2-6-112 (LexisNexis 2015).
4
Mrs. Meyer stated she was present at the time the Will was executed, and recalls both witnesses being
present.
3
[¶12] The district court then turned to Mrs. Meyer’s summary judgment motion. She
argued that the Will was a valid will in compliance with § 2-6-112 (to be valid, a non-
holographic will must be written and signed by the testator and two witnesses). The court
rejected this argument, holding that “Compliance with the minimum requirements of
Wyo. Stat. § 2-6-112 for a will does not prove a will.” The court held:
Under the probate code, a will may be admitted to probate
upon due execution (1) as a self-proving will; (2) by written
testimony as a non-self-proving will; or (3) by deposition
testimony as a non-self-proving will. If both subscribing
witnesses are deceased or otherwise not available then there
may be a fourth method of proof by other evidence. This is
not a case where both subscribing witnesses are unavailable.
[¶13] The district court then disposed of Mrs. Meyer’s argument that a notary’s
signature is presumptive proof that the notary witnessed the signatures, holding that such
a presumption is clearly rebutted by the testimony of Ms. Walker that Ms. Burkel-Groth
was not present when Richard Meyer and Ms. Walker signed the Will, and by Ms.
Burkel-Groth’s own testimony that she did not always witness the signatures that she
notarized.
[¶14] The district court granted Ms. Fanning’s motion for summary judgment and
denied Mrs. Meyer’s cross motion for summary judgment. This appeal followed.
STANDARD OF REVIEW
[¶15] Motions for summary judgment are made pursuant to Rule 56(c) of the Wyoming
Rules of Civil Procedure, which requires that
[t]he judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.
....
. . . We review a grant of summary judgment deciding
a question of law de novo and afford no deference to
the district court’s ruling.
4
Mont. Food, LLC v. Todosijevic, 2015 WY 26, ¶ 10, 344 P.3d 751, 754-55 (Wyo. 2015)
(citing Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 16, 317 P.3d 1124, 1131 (Wyo.
2014), quoting Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011))
(internal citations omitted).
DISCUSSION
The Statutory Conflict
[¶16] The result of the analysis adopted by the district court and urged upon us by Ms.
Fanning is that a “valid” will pursuant to § 2-6-112 could be impossible to prove under
§ 2-6-205. In order to resolve this apparent conflict, we turn to our rules of statutory
interpretation.
[¶17] Our review of a district court’s statutory interpretation is de novo. Powder River
Basin Res. Council v. Wyo. Oil & Gas Conservation Comm’n, 2014 WY 37, ¶ 19, 320
P.3d 222, 228 (Wyo. 2014). In interpreting statutes, we first look to the plain language of
the statute to determine the legislature’s intent. Wyo. Cmty. Coll. Comm’n v. Casper
Cmty. Coll. Dist., 2001 WY 86, ¶¶ 16-17, 31 P.3d 1242, 1249 (Wyo. 2001); Fontaine v.
Bd. of Cty. Comm’rs, 4 P.3d 890, 894 (Wyo. 2000); State ex rel. Motor Vehicle Div. v.
Holtz, 674 P.2d 732, 736 (Wyo. 1983). We examine the plain and ordinary meaning of
the words used by the legislature to determine whether the statute is ambiguous. Wyo.
Cmty. Coll. Comm’n, 2001 WY 86, ¶¶ 16-17, 31 P.3d at 1249.
A statute is clear and unambiguous if its wording is such that
reasonable persons are able to agree on its meaning with
consistency and predictability. Parker Land & Cattle [Co. v.
Game & Fish Comm’n, 845 P.2d 1040,] 1043 [(Wyo. 1993)].
Conversely, a statute is ambiguous if it is found to be vague
or uncertain and subject to varying interpretations. Id. . . . .
Ultimately, whether a statute is ambiguous is a matter of law
to be determined by the court. Allied-Signal [v. Wyo. State
Bd. of Equalization], 813 P.2d [214,] 219 [(Wyo. 1991)].
Id. at ¶ 17, 31 P.3d at 1249.
[¶18] The Wyoming Probate Code provides that, except in the case of holographic wills,
“all wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent
witnesses and signed by the testator or by some person in his presence and by his express
direction.” Wyo. Stat. Ann. § 2-6-112. Yet, to be admitted to probate, a “valid” will
must still be proven.
5
[¶19] Wyo. Stat. Ann. § 2-6-203(a) (LexisNexis 2015) provides:
Upon the filing of a petition for probate of a will, the court or
the clerk may hear it forthwith or at such time and place as
the court or clerk may direct, with or without requiring notice,
and upon proof of due execution of the will, admit the same
to probate.
Such proof may be provided in several ways. If a will is self-proving in compliance with
§ 2-6-114, it “shall be probated without further proof.” Wyo. Stat. Ann. § 2-6-204
(LexisNexis 2015). If a will is not self-proving, it may be proven with or without a
hearing by complying with Wyo. Stat. Ann. § 2-6-205 (LexisNexis 2015):
§ 2-6-205. Proof; wills not self-proving.
(a) If the will is not self-proving, proof of a will may
be made by the oral or written testimony of one or more of
the subscribing witnesses to the will. If the testimony is in
writing, it shall be substantially in the following form,
executed and sworn to contemporaneously with the execution
of the will or at any time thereafter, whether before or after
the date of death of the testator:
In the District Court of Wyoming
In and for ............... County
In the Matter of the Estate of ) Probate No. ........
............... Deceased ) Testimony of Subscribing
State of ............... ) ss Witness on Probate of Will
............... County )
I, ...., being first duly sworn, state:
I reside in the County of...., State of....; I knew the testator on
the... day of...., (year), the date of the instrument, the original
or exact reproduction of which is attached hereto, now shown
to me, and purporting to be the last will and testament of the
said....; I am one of the subscribing witnesses to said
instrument; and on the said date of said instrument, I knew....,
the other subscribing witness; and said instrument was
exhibited to me and to the other subscribing witness by the
testator, who declared the same to be his last will and
testament, and was signed by the testator at...., in the County
6
of...., State of...., on the date shown in said instrument, in the
presence of myself and the other subscribing witness; and
the other subscribing witness and I then and there, at the
request of the testator, in the presence of said testator and in
the presence of each other, subscribed our names thereto as
witnesses.
Name of witness ………………..
Address …………………………
Subscribed and sworn to before me this.... day of...., (year).
Notary Public in and for…………
County of ………………………..
State of …………………………..
(SEAL)
(b) If it is desired to prove the execution of the will by
deposition rather than by use of the affidavit form provided in
subsection (a) of this section, upon application the clerk shall
issue a commission to some officer authorized by the law of
this state to take depositions, with the will annexed, and the
officer taking the deposition shall exhibit it to the witness for
identification, and, when identified by him, shall mark it as
“Exhibit .........” and cause the witness to connect his
identification with it as such exhibit. Before sending out the
commission the clerk shall make and retain in his office a true
copy of the will.
(c) If all of the witnesses are deceased or otherwise not
available, it is permissible to prove the will by the sworn
testimony of two (2) credible disinterested witnesses that the
signature to the will is in the handwriting of the person whose
will it purports to be, and that the signatures of the witnesses
are in the handwriting of the witnesses, or it may be proved
by other sufficient evidence of the execution of the will.
(Emphasis added.)
[¶20] There is ambiguity in the conflict between the requirements for a valid will at § 2-
6-112, and the seemingly additional requirements for proof by affidavit at § 2-6-205(a).
One leading commentator questioned
whether [§ 2-6-205] has in effect created its own execution
process. If the requirements of the affidavit are substantive
formalities, the affidavit will not be useable for a previously
7
executed will unless it was executed according to all of the
stated formalities even though the will would otherwise be
valid in Wyoming. Anomalously, the formality procedure
outlined in this affidavit is even more demanding than what
the self-proven affidavit requires.
Lawrence H. Averill, Jr., The Wyoming Probate Code of 1980: An Analysis and Critique,
XVI Land & Water L. Rev. No. 1, 103, 127-28 (1981).
[¶21] Once we determine the language of a statute is ambiguous, “we proceed to the
next step, which involves applying general principles of statutory construction to the
language of the statute in order to construe any ambiguous language to accurately reflect
the intent of the legislature.” Powder River Basin Res. Council, 2014 WY 37, ¶ 19, 320
P.3d at 229 (citing Mountain Cement Co. v. S. of Laramie Water & Sewer Dist., 2011
WY 81, ¶ 13, 255 P.3d 881, 886 (Wyo. 2011) (quoting BP Am. Prod. Co. v. Dep’t of
Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005))). “[W]e must not give a
statute a meaning that will nullify its operation if it is susceptible of another
interpretation.” Powder River Basin Res. Council, 2014 WY 37, ¶ 19, 320 P.3d at 228
(citing Billis v. State, 800 P.2d 401, 413 (Wyo. 1990); McGuire v. McGuire, 608 P.2d
1278, 1283 (Wyo. 1980)). We read the statutes together, and construe statutes relating to
the same subject in harmony. Wyo. Cmty. Coll. Comm’n, 2001 WY 86, ¶¶ 16-17, 31 P.3d
at 1249.
In ascertaining the legislative intent in enacting a
statute . . . the court . . . must look to the mischief the
act was intended to cure, the historical setting
surrounding its enactment, the public policy of the
state, the conditions of the law and all other prior and
contemporaneous facts and circumstances that would
enable the court intelligently to determine the intention
of the lawmaking body.
Parker Land & Cattle Co. [v. Game & Fish Comm’n, 845
P.2d 1040,] 1044 [(Wyo. 1993)] (quoting Carter v. Thompson
Realty Co., 58 Wyo. 279, 131 P.2d 297, 299 (1942)).
Id. at ¶ 18, 31 P.3d at 1249; see also 2A Norman J. Singer & J.D. Shambie Singer,
Sutherland on Statutes and Statutory Construction § 45:5 at 35 (7th ed. 2007).
8
Legislative Intent
[¶22] The legislature stated its intent in enacting the Probate Code reforms in 1979 was
to simplify the probate process to effectuate the intent of the testator. It enacted Wyo.
Stat. Ann. § 2-1-102 (LexisNexis 2015), which states:
(a) [The Probate Code] shall be liberally construed
and applied, to promote the following purposes and policies
to:
(i) Simplify and clarify the law concerning the
affairs of decedents, missing persons, protected
persons, minors and incapacitated persons;
(ii) Discover and make effective the intent of a
decedent in distribution of his property;
(iii) Promote a speedy and efficient system for
liquidating the estate of the decedent and making
distribution to his successors;
(b) Unless displaced by the particular provisions of
this code, the principles of law and equity supplement the
code provisions.
(c) This code is a general act intended as a unified
coverage of its subject matter and no part of it shall be
deemed impliedly repealed by subsequent legislation if it can
reasonably be avoided.
(Emphasis added.)
[¶23] This objective is consistent with the historical setting surrounding the laws’
enactment. See 2B Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutes and
Statutory Construction § 49:1 at 7 (7th ed. 2008) (“Statutes are documents having
practical effects. It is therefore improper to construe them in the abstract, without taking
into consideration the historical framework in which they exist.”). Traditional estate
planning law was based on formality and bright-line principles governing the creation,
interpretation, and construction of wills. As one commentator has explained:
The act of creating a will has always been somewhat
ceremonial: In medieval England, testators often expressed
their wishes on the verge of death, as part of their last
confession. The march toward modern formality began in the
seventeenth century, when the process for determining title to
real estate had fallen into shambles. Bogus sales of land --
especially land that the seller claimed to have inherited --
were endemic. To make proof of ownership more reliable,
9
the British Parliament passed the Statute of Frauds in 1677,
thus mandating that wills conveying real property “shall be in
Writeing, [sic] and signed by the [testator], . . . and shall be
attested and subscribed in the presence of [the testator] by
three or fower [sic] credible Witnesses.” This last element --
attestation -- distinguished wills from gifts and contracts,
which never need to be witnessed. . . . [T]he Wills Act
extended the attestation requirement to all wills. The new
legislation also reduced the number of witnesses to two, but
added the element that these individuals needed to be “present
at the same time” when the testator signed or acknowledged
her signature. This stringent approach to will creation
migrated across the Atlantic and became enshrined in
virtually every American state.
David Horton, Wills Law on the Ground, 62 UCLA L. Rev. 1094, 1104-05 (2015)
(citations omitted). Courts charged with construction of wills placed form before
substance and refused to consider extrinsic evidence in their interpretations, often
resulting in nonsensical outcomes clearly contrary to the testator’s intent. Id. at 1107
(“[O]nly the words of the document were reliable. It was the will itself -- and not a
testator’s stray statements -- that arose within the prophylactic bubble of the statutory
formalities.”).
[¶24] Recognizing that this adherence to formality was unique to the area of the law of
wills and probate, scholars began criticizing this approach:
What is peculiar about the law of wills is not the prominence
of the formalities, but the judicial insistence that any defect in
complying with them automatically and inevitably voids the
will. In other areas where legislation imposes formal
requirements, the courts have taken a purposive approach to
formal defects. . . . The courts have boasted that they do not
permit formal safeguards to be turned into instruments of
injustice in cases where the purposes of the formalities are
independently satisfied.
John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 498-
99 (1975) (urging courts to require “substantial compliance” with, instead of strict
adherence to, wills act provisions).
[¶25] The confluence of such scholarly criticism and the proliferation of other methods
of transferring property on death, such as joint tenancy, life insurance, and trusts, led to
re-thinking the formal approach to wills. Id. at 504 (stating “if the will is to be restored to
10
its role as the major instrument for disposition of wealth at death, its execution must be
kept simple. The basic intent . . . is to validate the will whenever possible.”); see also
Uniform Probate Code, Article II, Part 5 (general comment) (1969). Over the last half
century, the formalistic approach has gradually given way to a more functional method of
construing wills. Horton, 62 UCLA L. Rev. at 1112-15.
[¶26] Although it has been renumbered, § 2-6-112, which establishes what is required
for a valid will, has been part of the Wyoming Probate Code since the 1880s. 1882 Wyo.
Sess. Laws, ch. 107 § 4. In 1979, the Wyoming legislature enacted sweeping changes to
the Probate Code, 1979 Wyo. Sess. Laws, ch. 142, and due to “a significant number of
technical and substantive problems,” Averill, supra ¶ 20, at 105-06, the legislature
reenacted an amended version of the Probate Code in 1980. 1980 Wyo. Sess. Laws, ch.
54. These changes were patterned after the Uniform Probate Code and the Iowa Probate
Code in existence at that time. Averill, supra ¶ 20, app. I at 392-94 (indicating that all
but three of the changes originated in the Iowa Probate Code).
[¶27] The 1979 amendments included the addition of § 2-6-405 (renumbered § 2-6-205
in 1980), regarding proof of non-self-proving wills. 1979 Wyo. Sess. Laws, ch. 142.
That provision was patterned after the Iowa Probate Code, which contains nearly
identical language for the proof of a will. Averill, supra ¶ 20, app. I at 391;5 Iowa Code
§§ 633.295 – 633.297 (1979). When proof of a will is to be made by a witness affidavit,
the affidavit must state that the witness signed the will in the presence of the testator and
in the presence of the other witness. Iowa Code § 633.295 This provision conforms with
Iowa’s requirement for a valid will, which must be witnessed by two witnesses “in the
presence of the testator and in the presence of each other.” Iowa Code § 633.279(1).
Thus, in Iowa, the requirements for proof of a will by affidavit did not exceed the
requirement for forming a valid will. That is not the case in Wyoming. See Averill,
supra ¶ 20, at 127 (“The execution of an ordinary witnessed will under Iowa law is
substantially more formalistic than under Wyoming law according to either the prior law
or the new Code.”).
[¶28] In Wyoming, when the legislature enacted § 2-6-205, it added several
requirements for proof of a will by affidavit found nowhere else in the Wyoming Probate
Code. Most notably, the stringent requirements for proving a will by affidavit (the will
must be signed by the testator in the presence of both witnesses, and the signatures of
both witnesses must be made in the presence of the testator and in the presence of each
other) reach far beyond what Wyoming statutes require to create a valid will. Compare
Wyo. Stat. Ann. §§ 2-6-112 and 116 with Wyo. Stat. Ann. § 2-6-205(a). If § 2-6-205(a)
has created additional substantive formalities required to execute a will, then the
5
The self-proving will statute, Wyo. Stat. Ann. § 2-6-114 (then § 2-6-203), was added at the same time
and was also patterned after the Iowa Code. Averill, supra ¶ 20, app. I at 391.
11
provision defining a valid will (§ 2-6-112) is rendered meaningless. We therefore
consider whether the legislature impliedly repealed § 2-6-112.
[¶29] [O]ur longstanding rule is that repeals by implication are not
favored and will not be indulged if there is any other
reasonable construction. One asserting implied repeal bears
the burden of demonstrating beyond question that the
legislature intended that its later legislative action evinced an
unequivocal purpose of affecting a repeal. Furthermore, it
must be shown that the later statute is so repugnant to the
earlier one that the two cannot logically stand together, or that
the whole subject of the earlier statute is covered by the later
one having the same object, clearly intending to prescribe the
only rules applicable to the subject.
Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 11, 61 P.3d 1229, 1233 (Wyo. 2003)
(quoting Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, 367 (Wyo. 2001)). The
legislature specifically reasserted this rule when it enacted the 1979 and 1980 statutory
amendments, and included the statement that “[t]his code is a general act intended as a
unified coverage of its subject matter and no part of it shall be deemed impliedly repealed
by subsequent legislation if it can reasonably be avoided.” Wyo. Stat. Ann. § 2-1-102(c).
Further, at the same time the Wyoming legislature adopted the proof of wills provision, it
enacted the statute reaffirming what is considered to be a valid will, § 2-6-116.6 1979
Wyo. Sess. Laws, ch. 142. We cannot conclude that § 2-6-112 was impliedly repealed
when the legislature enacted § 2-6-205.
[¶30] Taking into account the legislature’s stated intent to simplify and expedite the
probate process so as to effectuate the testator’s intent, § 2-1-102, the historical context of
the Probate Code revisions, and the legislature’s affirmance of § 2-6-112, we conclude
the legislature did not intend to impose additional substantive formalities for executing a
will when it enacted § 2-6-205. Our conclusion is further supported by other provisions
for proving a non-self-proving will that demonstrate the legislative intent to simplify the
process. See Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo. 2005) (“We
are guided by the full text of the statute, paying attention to its internal structure and the
functional relation between the parts and the whole.”). For example, the code provides
for proof of holographic wills “the same as any other private writing,” Wyo. Stat. Ann.
§ 2-6-206 (LexisNexis 2015), and directs the district court to “take proof of the execution
and validity” of lost or destroyed wills, Wyo. Stat. Ann. § 2-6-207 (LexisNexis 2015).
6
“A written will is valid if executed in compliance with W.S. 2-6-112[.]” Wyo. Stat. Ann. § 2-6-116
(LexisNexis 2015). A valid will “shall be in writing . . . witnessed by two (2) competent witnesses and
signed by the testator or by some person in his presence and by his express direction.” Wyo. Stat. Ann.
§ 2-6-112.
12
These provisions are consistent with a legislative purpose to relax formalistic
requirements to effectuate the testator’s intent.
[¶31] The legislative objective when it enacted the 1979 and 1980 revisions to
Wyoming’s Probate Code was to simplify the law rather than complicate it. The addition
of § 2-6-205 did not signal the legislature’s intent to move toward a more formalistic
approach in creating or proving wills. We hold that the legislature did not intend to add
additional elements of formality for formation of a will, nor did it intend to create
mandatory additional elements of proof for all non-self-proving wills. Rather, § 2-6-
205(a) created a specific requirement that the witnesses sign in the presence of each other
only when that proof is offered by affidavit.
It is a basic rule of statutory construction that courts may try
to determine legislative intent by considering the type of
statute being interpreted and what the legislature intended by
the language used, viewed in light of the objects and purposes
to be accomplished. . . . Furthermore, when we are
confronted with two possible but conflicting conclusions, we
will choose the one most logically designed to cure the
mischief or inequity that the legislature was attempting to
accomplish.
Hede, 2005 WY 24, ¶ 6, 107 P.3d at 162-63 (internal quotation marks and citation
omitted).
[¶32] Our holding is consistent with the less formalistic approach to proving wills this
Court has taken since the 1979 and 1980 revisions. In In re Estate of Altman, a self-
proving will was challenged because one of the will’s witnesses testified that “he did not
sign the will in the presence of the testator or [the other witness] but that it was brought
downstairs to his store by appellee where he signed it.” 650 P.2d 277, 280 (Wyo. 1982).
The district court held a jury trial, at which the other witness and the will’s proponent
both testified as to the will’s signing. The jury determined they were more credible than
the recanting witness, and this Court affirmed, holding that it was the jury’s role to
determine the credibility of witnesses. Id. In In re Estate of Zelikovitz, 923 P.2d 740
(Wyo. 1996), the testator’s signature on a will codicil was witnessed by one person who
saw the testator sign and signed as a witness; by one person who signed as a notary
public, but who did not see the witnesses sign the will, id. at 742; and by a third person
who signed as a witness but “did not actually witness the decedent sign the codicil.” Id.
at 744. This Court agreed that the third person could not qualify as a witness because she
had not seen the testator sign the codicil. However, this Court went on to say that the
person who signed as a notary could serve as a witness, and that “[t]here is no
requirement in our statutes that the witnesses sign in the presence of one another[.]”
Id. at 744 (emphasis added). That holding is consistent with our interpretation that the
13
requirement that witnesses sign in the presence of each other is limited to proof by
affidavit under § 2-6-205(a).
[¶33] In Matter of Estate of Croft, 713 P.2d 782 (Wyo. 1986), the will’s contestants
pointed to a mistake in the will codicil, which referred to a will with the incorrect date.
Id. at 784. This Court approved the approach taken by the district court, “[t]o fulfill its
obligation to liberally construe and apply the Wyoming Probate Code so as to promote
the purpose and policy thereof through discovering and making effective the intent of
Croft (§ 2-1-102(a)(ii)), the probate court properly received extrinsic evidence relative to
such intent.” Id. It held that such extrinsic evidence supported the probate court’s
conclusion that the referenced date was a mistake, and the codicil should be given effect.
Id. at 786. This precedent indicates an approach that avoids formalism in order to
effectuate the testator’s intent.
Proving a Will
[¶34] Wyoming’s Probate Code directs the clerk of court to admit a will to probate
“upon proof of due execution.” Wyo. Stat. Ann. § 2-6-203 (LexisNexis 2015). “Due
execution” is not defined in the Probate Code. “In the absence of a statutory definition,
this Court infers that the legislature intended no special meaning for the word but,
instead, intended that it be given its ordinary meaning—its common dictionary
definition.” Thomas v. Sumner, 2015 WY 7, ¶ 32, 341 P.3d 390, 399 (Wyo. 2015)
(quoting Craft v. State, 2012 WY 166, ¶ 14, 291 P.3d 306, 310 (Wyo. 2012) (citing
Ewing v. State, 2007 WY 78, ¶¶ 10, 13, 157 P.3d 943, 946 (Wyo. 2007))). “Due” in this
context can be defined as “regular, lawful.” Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/due (last visited Jan. 8, 2016).
[¶35] The due or lawful execution of a will is described in §§ 2-6-112 and 2-6-113. To
prove a will for its admission to probate, the proponent must make her prima facie case
by presenting evidence showing the will was: (1) in writing or typed; (2) witnessed by
two competent witnesses; and (3) signed by the testator or by some person in his presence
and by his express direction, in compliance with § 2-6-112, or that the will was a valid
holographic will as described in § 2-6-113.
[¶36] A self-proving will that complies with § 2-6-114 requires no additional proof to be
admitted to probate, Wyo. Stat. Ann. § 2-6-204, and may be admitted to probate without
the testimony of any subscribing witnesses or any other proof. See, e.g., Westmoreland v.
Tallent, 549 S.E.2d 113, 115-16 (Ga. 2001).
[¶37] If a will is not self-proving, the proponent of the will has the burden of presenting
evidence in order to establish its “due execution” before it will be admitted to probate.
Wyo. Stat. Ann. § 2-6-203; see also In re Estate of Wiltfong, 148 P.3d 465, 466-67 (Colo.
App. 2006); Prima Facie Case for Proponent in Will Contest as Shifting Burden of Proof,
14
76 A.L.R. 373 (1932); Wood v. Wood, 164 P. 844, 850 (Wyo. 1917). If a prima facie
showing is made that the will has been duly executed, then the will is entered into
probate. Wyo. Stat. Ann. § 2-6-203.
[¶38] Section 2-6-205 provides the means to prove a non-self-proving will. First, under
§ 2-6-205(a), a will may be proven by the “oral . . . testimony of one or more of the
subscribing witnesses[.]” Second, § 2-6-205(a) sets forth the method of proving a will
through affidavit testimony. Third, § 2-6-205(b) allows the proponent of a will to prove
it through deposition testimony. Finally, § 2-6-205(c) provides for a method of proving a
will when neither witness to the will is “available.”
[¶39] In addition to proof by affidavit, § 2-6-205(a) provides that proof of a non-self-
proving will “may be made by the oral . . . testimony of one or more of the subscribing
witnesses[.]” Section 2-6-203 allows the court to conduct a hearing upon the filing of a
petition for probate. The “oral testimony” of a subscribing witness referred to in § 2-6-
205(a) could be offered at such a hearing to prove the will. If the proponent of the will is
offering proof by affidavit, the affidavit must meet the requirements of § 2-6-205(a),
including the requirement that the witnesses signed in the presence of each other and in
the presence of the testator.7 The requirements for proving a will by affidavit at § 2-6-
205(a) do not apply to the provision for proof by oral testimony.
We will not insert language into a statute that the legislature
omitted. A basic tenet of statutory construction is that
omission of words from a statute is considered to be an
7
The requirement that witnesses sign “in the presence of each other” or “in the presence of the testator”
has been interpreted to mean that the witnesses be either in each other’s line of vision, or in each other’s
conscious presence. Restatement (Third) of Prop.: Wills and Donative Transfers § 3.1 at 177 (1999).
This Restatement adopts the conscious-presence test, which recognizes
that a person can sense the presence or actions of another without seeing
the other person. If the testator and the witnesses are near enough to be
able to sense each other’s presence, typically by being within earshot of
one another, so that the testator knows what is occurring, the presence
requirement is satisfied.
Id.; see also Smith v. Neikirk, 548 S.W.2d 156, 158 (Ky. Ct. App. 1977) (“The record of testimony
indicates that witness Runk was within the presence of the testator and the other witnesses at all times.
The fact that she may have had her back turned at the moment of execution does not disqualify her
as a witness. All that is required to be proved by the subscribing witness is the identification of
the signature. . . . It has been repeatedly held that substantial rather than a literal compliance with the
statute . . . will suffice. This Court has also indicated that where the technical requirements for execution
of wills have been substantially complied with, the will should be probated.” (citations omitted)).
15
intentional act by the legislature, and this Court will not read
words into a statute when the legislature has chosen not to
include them.
Stutzman v. Office of Wyo. State Eng’r, 2006 WY 30, ¶ 16, 130 P.3d 470, 475 (Wyo.
2006) (citations omitted).
[¶40] Section 2-6-205(b) addresses proof by another type of oral testimony, the
deposition. Subsection (b) applies “[i]f it is desired to prove the execution of the will by
deposition rather than by use of the affidavit form provided in subsection (a)”; and
requires that the officer taking the deposition “cause the witness to connect his
identification with [the will].” 8 Wyo. Stat. Ann. § 2-6-205(b). Subsection (b), unlike
subsection (a), does not require that the deponent testify that the witness signed the will
in the presence of the other witness and the testator. “There is a presumption in law that
an omission is intentional where particular words or terms appear in one provision, but
not in another related provision.” Schafer v. State, 2008 WY 149, ¶ 14, 197 P.3d 1247,
1250 (Wyo. 2008) (citation omitted). Because we will not insert language into the statute
that the legislature has left out, we will not read that language into subsection (b).
Stutzman, 2006 WY 30, ¶ 16, 130 P.3d at 475. To establish due execution by deposition,
a proponent may prove the will complies with § 2-6-112 by deposition in accordance
with subsection (b), and there is no need for the elements of proof found in § 2-6-205(a).
[¶41] Subsection (c) allows for proof of a will when the subscribing witnesses are “not
available.” Wyo. Stat. Ann. § 2-6-205(c). In that instance, a will may be proven by the
“sworn testimony of two (2) credible disinterested witnesses” that the signatures are those
of the testator and witnesses, or “it may be proved by other sufficient evidence of the
execution of the will.” Id. Subsection (c) is specifically limited to the situation where no
subscribing witness is available. (This is consistent with the pre-1979 provision, which
provided that “[i]f none of the subscribing witnesses reside in the county at the time
appointed for proving the will, the court may admit the testimony of other witnesses[.]”
Wyo. Stat. Ann. § 2-4-305 (Michie 1977)). This begs the question, however, of when a
witness is “not available” pursuant to subsection (c).
[¶42] The practice of proving a will through the testimony of a subscribing witness was
recognized by this Court in In re Stringer’s Estate, 80 Wyo. 389, 420, 343 P.2d 508, 520
(1959), reh’g denied and opinion modified by 345 P.2d 786 (Wyo. 1959), where we
stated:
8
Subsection (b) does not specifically identify who may testify by deposition. Reading subsection (b)
along with the limiting language of subsection (c), which allows testimony of non-witnesses to the will
only when the witnesses are unavailable, we must conclude that the deponent under subsection (b) must
be a witness to the will. If we read the statute any other way, our reading would render the unavailability
of witnesses’ requirement of subsection (c) meaningless. “This Court will not interpret a statute in a way
which renders any portion of it meaningless or in a manner producing absurd results.” Adekale v. State,
2015 WY 30, ¶ 13, 344 P.3d 761, 765-66 (Wyo. 2015).
16
While the Code provides that certain things are necessary to
the making of a valid will, it does not prescribe how those
things shall be proved. It leaves that to the general rules of
evidence. There is provision, it is true, that if the attesting
witnesses are alive, and present in the county, they must, in
the event of a contest, be called. This is a very natural and
just provision, for in such case the failure of the proponent of
a will to call his attesting witnesses would be a very
suspicious circumstance. But there is no statutory
declaration, and no principle of law, to the effect that a will
executed in due form shall go for naught unless an attesting
witness, after the lapse of many years, shall continue to
recollect everything material that occurred at the time he
subscribed his name to it. Such a rule would make the
validity of the will dependent, not upon the disposing mind
of the testator, nor his freedom from duress, undue
influence, or fraud, nor upon his clear expression of his
intention in the body of the instrument, nor upon its
conformity to the form and ceremony prescribed by statute,
but upon the fullness, accuracy, and persistency of the
recollection of one of the persons who signed it as a witness.
Such a rule cannot be maintained either upon principle or
precedent. What constitutes a sufficient execution of a will is
prescribed by the statute. What constitutes sufficient proof of
such execution is not so prescribed, and is a different
question, -- a question to be solved by the general principles
of evidence. *** Where an attesting witness has no
recollection as to certain matters connected with the making
of the will, the case is, upon principle, in the same condition
as where he is dead, insane, or absent[.]
(Citations omitted and emphasis added.) That ruling, based upon the sound reasoning
that an otherwise valid and duly executed will should not fail by virtue of the subscribing
witnesses’ imperfect or absent memory years after affixing their signature to the will, is
still applicable today.
[¶43] The legislature has made it clear that the current Probate Code shall be applied to
“[s]implify and clarify” the law, and “[d]iscover and make effective the intent of a
decedent.” Wyo. Stat. Ann. § 2-1-102(a)(i)-(iii). The legislature also instructed that
“[u]nless displaced by particular provisions of this code, the principles of law and equity
supplement the code provisions.” Wyo. Stat. Ann. § 2-1-102(a)(iii)(b). Section 2-6-
205(c) does not define when a witness is “not available.” Further, no other provisions of
17
the Probate Code indicate an intent to change or amend our interpretation of when a
subscribing witness may be considered unavailable, thereby allowing other evidence in
the proof of due execution. “Absent a manifestation of legislative intent to repeal a
common-law rule, statutes should be construed as consistent with the common law.”
Merrill v. Jansma, 2004 WY 26, ¶ 34, 86 P.3d 270, 285-86 (Wyo. 2004) (citation
omitted). Our conclusion in Stringer, 80 Wyo. at 421, 343 P.2d at 520, that a subscribing
witness’s failure to recollect “certain matters connected” with the execution of the will
renders that witness unavailable, is just as valid today as it was before § 2-6-205 was
enacted.9 See also Admissibility of Evidence Other Than Testimony of Subscribing
Witnesses to Prove Due Execution of Will, or Testamentary Capacity, 63 A.L.R. 1195
(1929 & Cum. Supp.) (“[E]vidence other than the testimony of a subscribing witness may
be admitted to prove the due execution of a will . . . either by way of supplementing
deficiencies in evidence of the attesting witnesses [or by] supplying the proof of attesting
witnesses whose testimony is not available[.]”).
[¶44] Under the Wyoming and Federal Rules of Evidence
a witness who testifies to not remembering the subject matter
of his statement is unavailable. A witness may either truly
lack recollection or for a variety of reasons, including concern
of a possible perjury prosecution, feign lack of recollection.
In either event, the witness is unavailable to the extent that he
asserts lack of recollection of the subject matter of the prior
statement, even if the witness recalls other events.
30C Michael H. Graham, Federal Practice and Procedure § 7072 at 354-55 (2011
Interim ed.); see also W.R.E. 804(a)(3). It is for the district court to determine whether a
witness’s memory lapse renders the witness unavailable as to any specific event. See,
e.g., Matter of Estate of Coniglio, 472 A.2d 205, 207 (Pa. Super. Ct. 1984) (other proof
allowed when proof by subscribing witness cannot be “adduced by the exercise of
reasonable diligence”).
9
The law makes two subscribing witnesses to a will indispensable
to its formal execution. But its validity does not depend solely upon the
testimony of the subscribing witnesses. If their memory fail, so that they
forget the attestation, or they be so wanting in integrity as willfully to
deny it, the will ought not to be lost, but its due execution and attestation
should be found on other credible evidence. And so the law provides.
In re Will of McCauley, 565 S.E.2d 88, 96 (N.C. 2002) (quotation marks and citations omitted).
18
[¶45] The proponent of a non-self-proving will must establish its due execution through
the testimony (at a hearing or via affidavit or deposition) of at least one of the subscribing
witnesses, if such a witness is available. If the proponent chooses to prove the due
execution of the will by affidavit, she has the additional burden to establish that the
witnesses signed in the presence of one another and the testator. If neither subscribing
witness is available, the proponent may establish the due execution using testimony of
two credible disinterested witnesses, or other sufficient evidence.
Meyer’s Will
[¶46] The district court concluded that Mrs. Meyer could not make out a prima facie
case that the Will was self-proving, despite self-proving language contained therein. We
agree that the Will in this case is not self-proving. To be self-proving, a will must
contain attestations by the testator and two witnesses that the will was executed as a “free
and voluntary act” by the testator and that the witnesses signed the will as witnesses “in
the presence and hearing of the testator.” Wyo. Stat. Ann. § 2-6-114(a), (c) (LexisNexis
2015). The attestations must be made “before an officer authorized to administer oaths”
and “evidenced by the officer’s certificate under official seal.” Id. While the Will in this
case contains the self-proving language required by the statute, it does not meet the
statutory requirements for self-proving wills because it was improperly notarized when
Ms. Burkel-Groth signed as the second witness and then notarized her own signature.
[¶47] Other courts addressing the issue have determined that a notary who signs a will is
either a notary or a witness, but cannot be both. See In re Estate of Alfara, 703 N.E.2d
620, 627 (Ill. App. Ct. 1998); In re Estate of Price, 871 P.2d 1079, 1083 n.4 (Wash. Ct.
App. 1994); Smith v. Neikirk, 548 S.W.2d 156, 158 (Ky. Ct. App. 1977); Ferguson v.
Ferguson, 47 S.E.2d 346, 352 (Va. 1948). This authority is consistent with the guidance
provided to notaries by the Wyoming Secretary of State. The Wyoming Notary
Handbook provides that a notary should “[a]bsolutely not!” witness her own signature,
explaining: “Since a notary must always be an objective and independent witness,
notarizing your own signature defeats the very purpose of notarization. Don’t do it.”
Wyo. Sec’y of State, Wyoming Notary Handbook, at 16,
http://soswy.state.wy.us/Forms/Publications/NotaryHandbook.pdf (last visited Jan. 8,
2016).
[¶48] We hold that a notary may not simultaneously act as a notary and a witness. The
notary must be one or the other. If Ms. Burkel-Groth’s signature were to be considered a
notarial certificate, there would not be two attesting witnesses and the Will would be
invalid. However, because Ms. Burkel-Groth’s signature appears as a witness, it will be
considered as such; the fact that she signed as a notary has no legal significance. See
In re Estate of Zelikovitz, 923 P.2d at 744 (“There is no provision in the Wyoming
Statutes, nor any ruling in our cases, that would inhibit the notary public from serving as
a witness . . . although that does foreclose the prospect of having a self-proving will
19
pursuant to Wyo. Stat. § 2-6-114 (1980).”). The Will cannot be a self-proving will
because it fails to meet the notarization requirement of § 2-6-114. We therefore affirm
the district court’s ruling that the Will is not self-proving. 10
[¶49] The district court further concluded that Mrs. Meyer could not prove the Will by
any other method because she could not establish that the witnesses signed the Will in
each other’s presence. We have determined that conclusion was in error and we therefore
reverse. We remand to the district court for a determination of whether Mrs. Meyer can
make a prima facie case of the Will’s validity by some other method, pursuant to §§ 2-6-
203 and 205. Among other things, the district court will need to consider what weight to
give the attestation clause in light of the fact that, although the notary certification is
invalid, the witnesses seem to have verified that their signatures are valid.
[¶50] In addition, the district court will need to determine whether the subscribing
witnesses are available for purposes of § 2-6-205(c). While both witnesses were able to
verify their signatures, Ms. Burkel-Groth has no specific memory of the events
surrounding the execution of the Will. This alone is sufficient to render Ms. Burkel-
Groth unavailable. While Ms. Walker does have a memory of at least some of the events
concerning the Will’s execution, her testimony conflicts. At one point, Ms. Walker
stated that both she and Mr. Meyer signed his Will. At another point, Ms. Walker stated,
however, that she had no memory of seeing Mr. Meyer sign the Will. Moreover, Ms.
Walker stated in her affidavit that she had “no recollection of Denise Burkel being
present,” yet stated in her deposition that she had a “vague recollection of someone else
being there” but does not remember who it was. These discrepancies create a question of
fact as to whether Ms. Walker has an adequate memory to render her available as a
witness concerning the events which took place during the execution of the Will. This
question can be resolved by the district court after an evaluation of the witnesses at a
hearing as prescribed under § 2-6-203.
[¶51] If the district court determines that Mrs. Meyer can establish a prima facie case of
due execution of the Will, the burden would then shift to Ms. Fanning to present “some
evidence worthy of credence” that the Will was not duly executed. First Nat’l Bank v.
Ford, 30 Wyo. 110, 119, 216 P. 691, 694 (1923); Prima Facie Case for Proponent in
10
The failure of the notary however, does not per se render the Will invalid. The Will appears to meet the
requirements for a valid will at § 2-6-112. The purpose of a notary’s certificate is that it is “presumptive
evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit
may contradict, by other evidence, the certificate of a notary public.” Wyo. Stat. Ann. § 32-1-107
(LexisNexis 2015). “[T]he general purpose of acknowledgment is to authenticate the instrument as being
the act of the person executing it.” 1A C.J.S. Acknowledgment § 2 at 126 (2005). The attestation clauses,
although they are not notarized and therefore fail to satisfy the statutory requirements for self-proving
wills or for proof by affidavit, may nevertheless have some evidentiary value. See, e.g., North Am.
Uranium, Inc. v. Johnston, 316 P.2d 325, 343 (Wyo. 1957) (unacknowledged instrument was not entitled
to be placed of record but “was perfectly good as between the parties”).
20
Will Contest as Shifting Burden of Proof, 76 A.L.R. 373 (1932); Wood, 164 P. at 850. If
Ms. Fanning is unable to overcome that burden, and the Will is admitted to probate, it
may then be contested on other grounds such as undue influence or fraud.11
CONCLUSION
[¶52] A will’s proponent must prove its due execution before it can be admitted to
probate. In most cases, proof of due execution requires proof that the will was (1) in
writing or typed; (2) witnessed by two competent witnesses; and (3) signed by the testator
or by some person in his presence and by his express direction, in compliance with Wyo.
Stat. Ann. § 2-6-112. If the will is self-proving, it will be admitted to probate with no
additional proof other than the will itself. Wyo. Stat. Ann. §§ 2-6-114, 2-6-204. If the
will is not self-proving, the proponent must present evidence establishing its due
execution, either at a hearing of the oral testimony of the subscribing witnesses pursuant
to Wyo. Stat. Ann. §§ 2-6-203 and 2-6-205(a), or by affidavit or deposition of the
subscribing witnesses according to Wyo. Stat. Ann. § 2-6-205(a) and (b). When proof is
by affidavit, the affidavit must establish that the witnesses signed the will in the presence
of the testator and in the presence of each other. Wyo. Stat. Ann. § 2-6-205(a). That
requirement applies to no other method of proving a non-self-proving will. If no
subscribing witness is available, then the proponent may offer other witnesses or
evidence to prove the will. Wyo. Stat. Ann. § 2-6-205(c).
[¶53] The district court erred when it concluded that in all cases where a will is not self-
proving, the proponent must establish that the witnesses signed the will in the presence of
each other and in the presence of the testator. We therefore reverse and remand to the
district court for further proceedings consistent with this opinion.
11
After a will has been admitted to probate, any person interested
may, within the time designated in the notice provided for in W.S. 2-6-
122 or 2-7-201, contest the will or the validity of the will. For that
purpose he shall file in the court in which the will was proved a petition
in writing containing his allegations against the validity of the will or
against the sufficiency of the proof, and praying that the probate be
revoked.
Wyo. Stat. Ann. § 2-6-301 (LexisNexis 2015); see also Russell v. Sullivan, 2012 WY 20, ¶ 14, 270 P.3d
677, 680 (Wyo. 2012) (“will contest is ‘collateral’ to the petition to submit the will to probate”).
21