IN RE ESTATE OF HALL
51 P.3d 1134 (2002)


Procedure: Testator's wife applied to informally probate the joint will. Testator's daughter from a previous marriage objected to the informal probate and requested formal probate of the original will. The District Court of the Eighth Judicial District, County of Cascade, Thomas M. McKittrick, J., admitted the joint will to probate, and daughter appealed.

Facts: Jim Hall died in 1998, survived by his wife, Betty, and two daughters from a previous marriage, Sandra and Charlotte. In 1984, Jim had executed an "Original Will." Thirteen years later, however, Jim and Charlotte had decided to execute a Joint Will. Their attorney prepared a draft and met with them to discuss it. Jim and Charlotte substantially agreed to the terms and desired only minor changes. Jim, however, requested that the draft be executed until the changes were made. Jim and Betty signed the Joint Will and their attorney notarized it without any additional attesting witnesses present. When they arrived home, Betty tore up the Original Will at Jim's direction. When Jim died, Betty applied for informal probate of the Joint Will. Sandra objected, seeking to admit the Original Will to probate. When the court admitted the Joint Will, Sandra appealed.

Issue: Can a will be admitted to probate in Montana despite glaring errors in its execution provided that the parties can show that they intended the document to be their will with clear and convincing evidence?

Holding: The Supreme Court, Jim Regnier, J., held that, although no witnesses were present at the execution of the joint will of testator and his wife, evidence indicated that testator intended that the joint will be his will, and thus, joint will properly was admitted into probate.
Affirmed.

Rule: Although a will generally requires two attesting witnesses, a document may be validated with clear and convincing evidence that the decedent intended the document to be his will.

Analysis:Section 2-503 of the Model Probate Code excuses harmless errors that invalidate an otherwise enforceable will. In so doing, the Code places upon one seeking to uphold the will the burden of proof that the document accurately reflects the testator's wishes, although strict statutory compliance is lacking. Thus, the notarization of a document, with additional evidence of intent, may serve as a substitute for the signatures of two attesting witnesses, at least in some jurisdictions.