Loftus v. Loftus (In Re Estate)
Loftus v. Loftus (In Re Estate)
Opinion
*721 INTRODUCTION
The appellants, Daniel Loftus, Jr., and Teri Loftus McClun (Teri), appeal the order of the county court for Sarpy County which admitted the last will and testament of Susan A. Loftus to formal probate. On appeal, the appellants argue that the will was not properly acknowledged and, therefore, was not valid. Finding no merit to this argument, we affirm.
BACKGROUND
Susan died in April 2017. A document purported to be her last will and testament was thereafter presented to the county court for formal probate, and the appellants filed an objection to the admission of the will. A hearing on the matter was held on August 28, 2017.
The purported will was received into evidence at the hearing. The three-page document displays Susan's signature on the last page and the signature of Ruth Welstead as a witness.
*441 Welstead testified at the hearing that Susan asked her if she would be a witness to Susan's last will and testament and that she agreed to do so. Welstead observed Susan sign the will, and then Welstead signed it.
The document also bears the signature and notary stamp of Allen Guidry, although it is undisputed that there is an error in the manner in which the notary statement was completed. Guidry was working at a bank at the time he signed *722 the will, and he testified at the hearing that he did not specifically remember Susan's will, but was confident the signature on the document was his signature. He explained that generally when someone came into the bank and presented him a document that had already been signed, he would ask for identification if he did not recognize the person as a bank customer; however, if he did recognize the person, he would ask him or her to verify that it was his or her signature on the document. He recalled that Susan was a customer of the bank, and thus, if she had come into the bank with the document presigned, he would not have asked her for identification; but, rather, his normal practice would be to ask her to acknowledge her signature on the document.
In a written order, the county court noted that Guidry had testified as to his practice of always asking for identification unless he knew the signatory and always asking if the person acknowledged signing the document in question if it had been presigned. The court therefore found Guidry's testimony sufficient to establish that he required the acknowledgment of Susan's signature before he signed the document. As a result, the court concluded that Susan's will had been validly executed and admitted it to formal probate, determined the heirs, and appointed a personal representative for the estate. The appellants timely appeal to this court.
ASSIGNMENT OF ERROR
The appellants assign, summarized, that the county court erred in finding that Susan's signature on her will was properly acknowledged.
*442 STANDARD OF REVIEW
An appellate court reviews probate cases for error appearing on the record made in the county court.
In re Estate of Pluhacek,
ANALYSIS
The appellants argue that the county court erred in determining that Susan's will was properly acknowledged. We disagree.
Except as provided for holographic wills, writings within
There is no dispute in the present case that Susan's will was in writing and signed by her, and Susan's signature was witnessed by Welstead, who also signed the *723 will. Thus, the parties agree that the relevant question is whether there is sufficient evidence to establish that Guidry witnessed Susan's *443 acknowledgment of her signature so as to satisfy the third requirement of § 30-2327.
The appellants rely upon
The language of a statute is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
Johnson v. City of Fremont,
Under § 30-2327, a will must be signed by two witnesses, each of whom witnessed either the signing or the testator's acknowledgment of the signing or of the will. Statutory provisions regarding the manner in which wills must be executed are mandatory and subject to strict construction.
In re Estate of Mecello,
Moreover, the language of § 30-2327 is based upon Unif. Probate Code § 2-502, 8 (part I) U.L.A. 209 (2013). See
In re Estate of Odenreider,
(A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will ... or the testator's acknowledgment of that signature or acknowledgment of the will; or
(B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
(Emphasis supplied.) The official comments to § 2-502 note that subparagraph (B) was added in 2008 in order to recognize the validity of notarized wills. Thus, pursuant to the plain language of subparagraph (A), which is also contained in § 30-2327, there is no requirement that one of *724 the witnesses is a notary public. Therefore, Guidry's failure to specifically identify Susan in the notary statement is not fatal to the validity of the will because no notary statement was required. However, there must have been sufficient evidence presented to establish that Guidry witnessed Susan's acknowledgment that she had, in fact, signed the will.
Guidry testified that he did not specifically recall signing Susan's will, but was confident the signature on the document was his signature. He then explained that he recognized Susan as a customer of the bank and that therefore, his routine practice when notarizing a document for someone he recognized was to *445 sign it without asking for identification to verify the person's identity. He explained his general practice, however, was that he would not have notarized an unsigned document and that if the document was presigned, his habit was to ask the person to acknowledge his or her signature on the document.
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
The Nebraska appellate courts have previously allowed testimony by professionals as to their habits in order to prove conformity on a particular occasion. In
Hoffart v. Hodge,
Relying upon the rationale of
Hoffart v. Hodge,
In a matter similar to the facts of the instant case, the Court of Appeals of Indiana permitted the testimony of a lawyer's habit and routine practice in a will contest. In
Fitch v. Maesch
,
*446
Indiana law, similar to that of Nebraska, requires that a will be signed by the testator and at least two witnesses, mandating that the testator sign the will in the presence of the witnesses and that the attesting witnesses sign in the presence of the testator and each other. See
Likewise in the present case, Guidry's testimony as to his routine practice
*725
of signing documents for bank customers tends to establish how he acted when signing Susan's will. Habit evidence makes it more probable that the person acted in a manner consistent with that habit. See
Hoffart v. Hodge,
The appellants assert that there is no evidence that Susan personally presented her will to Guidry for his signature. However, Guidry's testimony established that had someone he did not recognize presented Susan's will to him, he would have asked that person for identification before signing the will and would not have signed the document without seeing identification matching the signature on the document. Thus, it can be inferred that because Guidry signed the will, it was Susan who presented the document to him.
*447
The county court found that Guidry's testimony as to his routine practice was sufficient to establish that he required that Susan acknowledge her signature on her will before Guidry signed it. The appellants argue that the court relied on a single statement from Guidry's testimony regarding his procedures and that had the court considered the entirety of the testimony, it would be clear that Guidry was unfamiliar with the proper procedures for notarizing a document. We again note that the will was not required to be notarized, but, rather, Guidry was required to sign the will after acknowledging Susan's signature. The credibility of a witness is a question for the trier of fact, and it is within its province to credit the whole of the witness' testimony, or any part of it, which seemed to it to be convincing, and reject so much of it as in its judgment is not entitled to credit.
Fredericks Peebles v. Assam,
An appellate court, in reviewing a judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court when competent evidence supports those findings.
In re Estate of Forgey,
CONCLUSION
Finding no error in the county court's decision admitting the will to formal probate, we affirm.
AFFIRMED .
Case-law data current through December 31, 2025. Source: CourtListener bulk data.