In Mississippi, a Will must be totally handwritten and signed by the maker (testator), OR it must executed with certain formalities, including at least two witnesses who sign at the same time as the maker.  There is no time limit after the testator’s death within which the Will must be probated in court.  Those facts was brought into focus in a recent Appeals Court case involving a dispute about the validity of a Will that was filed for probate 17 years after the maker’s death.

Luke Beard signed a Last Will and Testament in 1987, but told only his grandson, Antonio Christmas, about the will. He did not tell his daughter, Diane Christmas. When he died in February 2001, Diane and Antonio continued on with Antonio living in Beard’s house and Diane paying the taxes. Nearly two years after his death, Antonio and Diane had a falling out and she filed a petition to open an estate as the sole heir. Twelve years later, in 2014, she opened a second estate. Antonio did not get notice of either proceeding.

In 2017, Antonio discovered a company harvesting timber on the property and learned about his mother’s actions. The following year, a full 17 years after Beard’s death, Antonio filed to probate his will. The will left Beard’s entire estate to Antonio, was typewritten and signed with two witnesses. It did not contain a separate attestation clause. Diane objected, on the grounds that Beard did not have testamentary capacity at the time that the will was signed. At the trial, Diane testified that she had not made any attempts to locate a will prior to her probate petitions. Antonio presented evidence authenticating the signatures of Beard and one of the two witnesses, all of whom were deceased by the time of the trial. Diane’s counsel argued that the probate was barred by the statute of limitations to challenging an estate and that the will was not valid because it had no separate attestation clause. The court relied on the attestation argument to invalidate the will and dismiss the case. Antonio appealed, arguing that the attestation language within the will was sufficient and a separate attestation clause was not necessary. Diane countered by arguing that, since Antonio did not raise that argument at the trial court level, it was not appealable.

The appellate court viewed Antonio’s contention that separate attestation language was not required as a logical extension of his argument for the validity of the will at the trial court level. It allowed the argument and moved into an analysis of Miss. Code Ann. §§ 91-5-1et seq. Finding that the will was “attested by two or more credible witnesses in the presence of the testator,” the appellate court found that the will did meet statutory requirements for a valid document. It then looked at the language of the statute which sets out the requirements to prove the due execution of a will, which it noted requires validating the handwriting of the testator and “some of” the witnesses. Antonio was able to present evidence regarding the handwriting of Beard and one of the witnesses. Looking to statutory construction, the appellate court stated that, if the legislature would have intended for the handwriting of all witnesses to be authenticated, it would have used words to that effect. Therefore, the appellate court found that the will should have been admitted to probate.

Christmas v. Christmas, 2021 WL 1975961 (Miss. App. May 18, 2021)