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Miles v. Bryant

A jury question remained as to whether decedent's will was properly signed and witnessed.

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The narrow issue presented in this appeal is whether the will of Margaret C. Tidwell is properly attested. Emilee Miles, the propounder of the will, appeals the grant of summary judgment in favor of Grace Bryant and the other caveators, denying the petition to probate in solemn form because of a lack of attestation. Because there are genuine issues of material fact that only a jury can resolve, we reverse. The writing offered for probate consists of 6 typewritten pages with the first page being entitled “Last Will and Testament of Margaret C. Tidwell.” As shown on the attached Appendix, on page 4, the will’s last item is followed by the signature of Margaret C. Tidwell, Testatrix. The attestation clause follows Tidwell’s signature and continues to page 5 where it is signed by two attesting witnesses, one of whom is Martha Marie Cooper. A self proving clause1 commences on page 5 and is completed on page 6 where it is again signed by the testatrix, Margaret C. Tidwell, by two witnesses, including one of the attesting witnesses, Martha Marie Cooper, and by Heather D. Capallo, a notary public.

Construed most favorably to the propounder Miles, for purposes of summary judgment2 the record contains the following evidence. Cooper was Tidwell’s friend for many years. She visited Tidwell almost daily during her hospitalization in November and December 2001. Tidwell told Cooper of her desire to execute a will. She wanted Cooper to witness her will and Cooper agreed to do so.

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