Pool v. Estate of Shelby

SIMMS, Justice: Kenneth Pool and W.C. Pool, appellants, are the only living sons of Bessie Shelby, testatrix of the estate which is the appellee herein. Louise Creekmore, Shelby’s only daughter and the named executor in Shelby’s will, brought this probate proceeding asking the trial court to admit the will into probate. The Pools appeal the trial court’s judgment admitting the will arguing that Shelby revoked the will in an affidavit signed after the execution of the will. On review, the Court of Appeals affirmed the trial court’s decision that the revocation by affidavit was nullified by Shelby’s refiling of the same will in the Grady County Court Clerk’s office six months later. Certiorari was granted to consider the first-impression question of whether the refiling of a revoked will constitutes republication. After further consideration of the matter, however, we have determined that [362] the question is not framed for decision because the purported revocation upon which the entire issue rests was legally insufficient as a matter of law.1 We therefore vacate the opinion of the Court of Appeals and affirm the order of the trial court admitting the will to probate. The facts presented to the trial court are as follows. Shelby executed her self-proving Last Will and Testament on November 29, 1979 leaving a majority of her estate to Creek-more who had attended Shelby’s needs for many years. At the probate hearing, the witnesses who attested the will testified that Shelby was of sound and disposing mind and did not appear to be acting under duress, menace, undue influence or misrepresentation. Shelby’s family physician examined her two months prior to execution of the will and testified that she was mentally competent at that time. The appellants attempted to cast doubt upon Shelby’s testamentary capacity, but the trial court found that the will was properly executed and valid. The appellants then produced an affidavit of revocation purportedly signed by Shelby on May 1, 1980, five months after executing her will. The affidavit read as follows: “I, Bessie Shelby, 81 years of age, do hereby state and affirm that I have never in my life made a Last Will and Testament. If, however, at any time that I may have unknowingly signed a Last Will and Testament, I hereby expressly declare said Last Will and Testament void.” /S/ Bessie M. Shelby” The affidavit was witnessed by two individuals and notarized, but contained no attestation clauses.2 The appellants’ sole witness during the contest proceedings regarding the affidavit was the attorney who drafted the affidavit, Patrick Brown. Brown testified that Kenneth Pool contaet-ed him on behalf of Shelby to attempt to regain title to property she had conveyed to Creekmore and an attorney. Brown met with Shelby for the first time on May 1, 1980, and after conferring with her about the property, they discussed her estate. He testified that she stated that she did not have a trust or a will and did not want to have one made for her, but that she would rather have the property divided equally between her children by a judge as Brown had explained would occur if she died without a will. Brown then drafted the affidavit to assure that if a will had been executed it would be revoked, and the property would pass to her heirs by law. However, twelve days after execution of the revocation, Brown persuaded the district court to adjudge Shelby legally incompetent and appoint a legal guardian for her. To counter the affidavit, Creekmore produced a certified copy of the Grady County Court Clerk’s records which listed the probate documents deposited there, including Shelby’s will which was filed on December 14, 1979. The records further indicated that on November 26, 1980, Shelby withdrew the will from the court clerk’s office and refiled it on the same day. The second filing occurred after Shelby signed the affidavit, and Creekmore asserted that it showed Shelby’s intent to revive and republish the will. The transcript reveals that the trial court voiced its doubts as to the affidavit’s validity during the proceeding as well as in the journal entry of judgment. Our review of the record indicates that the trial court’s observations are well taken. In regards to the revocation, the trial court found that “with her having filed the will on November 26,1980, even if the revocation at the time she made it was valid, the revocation is wiped out by the fact that she took this Will back to the Courthouse and filed the Will again with the Court Clerk, leaving it there presumably to be available at the time she passed away [363] and her estate had to be probated.... The Court FURTHER FINDS that the testimony of Respondents’ only witness, Pat Brown was contradictory and the Court does not believe if we are to accept his testimony, that he could have have [sic] believed in time to have a guardian appointed on May 13, 1980, that she was incompetent and yet could have believed on May 1, 1980, that she was competent enough to make the revocation.” Oklahoma has long followed the general rule that a will can be revoked by a testator; but, once made in compliance with and under the formalities of statute, it cannot be revoked in any manner other than provided by statute. In re Ballards’ Estate, 56 Okl. 149, 155 P. 894 (1916); In re Cabaniss’ Estate, 191 Okl. 340, 129 P.2d 1003 (1942). Title 84 O.S.1971, § 101, sets forth the exclusive methods for revoking a written will. In pertinent part, § 101(1) states, as follows: “By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator ...” (Emphasis added) This Court construed § 101 in Chesnut v. Capey, 45 Okla. 754, 146 P. 589 (1915), (then Rev.Laws Okla.1910, § 8358) and held that a full-blood Indian testator properly revoked his will by a non-testamentary document pursuant to the statute where the revocation complied with all the requirements for proper execution of a will in Oklahoma, even though it was not in compliance with a federal statute for wills executed by full-blood Indians. The Court stated: “When the statute required that instrument to be executed with the same formalities with which a will should be executed, .it meant with the same formalities a will was then required to be executed by the statute in force in the state.” 146 P. at 592. Therefore, the affidavit in question must have been executed with the same formalities as a will under the statute then governing will execution. See generally Annot., Revocation of Will by Nontesta-mentary Writing, 22 A.L.R.3d 1346 (1968). Title 84 O.S.Supp.1977, § 55, the statute applicable at the time the affidavit was signed, enunciates those formalities which must be followed in order for a type-written will to be legally executed. Section 55 provides, in pertinent part, as follows: “Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will and a nun-cupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto. 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority. 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will. 4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator’s request and in his presence.” On its face, the affidavit fails to comply with the statutory requirements. The affidavit does not contain any language indicating that Shelby signed the affidavit in the presence of the two witnesses or acknowledged that it was her signature on the affidavit as mandated by § 55(2). Nor was evidence or testimony presented to the trial court to show that Shelby acknowledged that the signature was hers. Furthermore, the affidavit does not contain a statement that Shelby declared to the witnesses that the affidavit was a revocation of all previous wills according to the requirement of § 55(3). Nor was there any evidence or testimony before the trial court showing that she declared such to the subscribing witnesses. Further, the record contains nothing to indicate that the witnesses signed the affidavit at Shelby’s request and in her presence. [364] The Pools did not prove that the revocation was valid. Since the revocation was invalid, it had no effect on the validity of the will and the revival and republication arguments are moot. Hence, the will was valid and properly admitted into probate by the trial court. Appellee Estate has requested counsel’s fees for appeal and certiorari-related services, arguing the appeal is “frivolous and wholly without merit.” 20 O.S.Supp.1982, § 15.1. Request for attorney fees is denied. We have examined the whole record and weighed the evidence in this case of equitable cognizance, and we find that the judgment of the trial court is clearly supported by the weight of the evidence. In re Estate of Bennight, 503 P.2d 203 (Okla.1972). Therefore, the judgment of the trial court is AFFIRMED. OPALA, C.J., and HARGRAVE, KAUGER and SUMMERS, JJ., concur. HODGES, V.C.J., and LAVENDER and ALMA WILSON, JJ., dissent. DOOLIN, J., disqualified. Footnotes [1] The issue of testamentary capacity of Bessie Shelby was not raised by appellants in their briefs nor in their petition for certiorari. [2] Although this document met the requirements of an affidavit as defined in 12 O.S.1981, § 422, it did not comply with the requirements of a nontestamentary document revoking a will under 84 O.S.Supp.1977, § 55(2) and (3).