ATTORNEYS FOR APPELLANT
James R. Byron
Jacob S. Frost
ATTORNEYS FOR APPELLEE
Peter J. Rusthoven
John R. Maley
Andrew P. Heck
Greta Roemer Lewis
South Bend, Indiana
INDIANA STATE BAR
Jeffry A. Lind
Terre Haute, Indiana
Jeffrey B. Kolb
George N. Bewley, Jr.
Fort Wayne, Indiana
Diane Hubbard Kennedy
Marc A. Hetzner
James W. Martin
J. Gregory Shelley
G. Pearson Smith, Jr.
Richard B. Urda, Jr.
South Bend, Indiana
Milton O. Thompson
INDIANA SYMPHONY SOCIETY
UNIVERSITY OF INDIANAPOLIS
Gordon D. Wishard
Kevin M. Alerding
CHILDRENS MUSEUM OF INDIANAPOLIS
Hans S. Steck
INDIANAPOLIS MUSEUM OF ART
Patricia Polis McCrory
KIWANIS INTERNATIONAL FOUNDATION, INC.
Patricia Polis McCrory
UAW LEGAL SERVICES PLAN
UAW FORD LEGAL SERVICES PLAN
UAW-DAIMLERCHRYSLER LEGAL SERVICES PLAN
Timothy J. OConnell
IN THE MATTER OF THE ESTATE )
SAMUEL J. DELLINGER, SR., )
DECEASED, ) Indiana Supreme Court
) Cause No. 71S05-0305-CV-208
Appellant (Petitioner Below), )
) Indiana Court of Appeals
v. ) Cause No. 71A05-0111-CV-506
1ST SOURCE BANK, as Personal )
Appellee (Respondent Below). )
Indiana Code section 29-1-5-3(a) provides:
The execution of a will, other than a nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows:
The testator, in the presence of two (2) or more attesting witnesses, shall signify to them that the instrument is the testators will and either:
sign the will;
acknowledge the testators signature already made; or
at the testators direction and in the testators presence have someone else sign the testators name.
The attesting witnesses must sign in the presence of the testator and each other.
There was testimony that Dellinger, by hand signals, indicated that the document
was his will and directed his attorney to sign it for him.
This satisfied the condition of subsection (a)(1) by meeting the alternative means of
signature by the testator afforded by subsection (a)(1)(C). The witnesses testified that
they signed page five in Dellingers presence and in the presence of each
other. This satisfied the condition of subsection (a)(2). Because both subsections
(1) and (2) of section 3(a) are satisfied, the will was properly executed
Conrad advances the ingenious but ultimately flawed contention that the signatures on page five constituted an attempt at self-proof, but did not evidence witnessing of the will. The Court of Appeals agreed. We do not. First, and most straightforwardly, the signatures appear on page five of the instrument. That page recites that Dellinger executed the foregoing instrument, consisting of five (5) typewritten pages, as his Will. This plainly includes page five in that count and thereby asserts that page five is a part of the will. The signatures of the witnesses appear on that page. We therefore, syllogistically, have a will, signed by Dellinger, and signed by the witnesses, all in the presence of each other. That satisfies all formal conditions of subsections (a)(1) and (2). If one accepts the testimony of the attorney and the witnesses as we must in an appeal from a general judgment, these facts also establish that the witnesses believed they were witnessing Dellingers will, and believed he wanted them to do so.
We find this rather simple approach to the issue at hand to be persuasive. Conrad responds that the last page of the will merely served to self-prove the will, but did not witness it. But subsection (d) of the statute allows an attestation clause to serve also as a self-proving clause. The statute expressly provides that a will is self-proving if its attestation clause indicates the facts necessary to prove the will:
(d) This subsection applies to all wills, regardless of the date a will is executed. A will is presumed to be self-proved if the will includes an attestation clause signed by the witnesses that indicates that:
The testator signified that the instrument is the testators will;
In the presence of at least two (2) witnesses, the testator signed the instrument or acknowledged the testators signature already made or directed another to sign for the testator in the testators presence;
The testator executed the instrument freely and voluntarily for the purposes expressed in it;
In the presence of all other witnesses, is executing the instrument as a witness;
The testator was of sound mind when the will was executed; and
The testator is, to the best of the knowledge of each of the witnesses, either:
At least eighteen (18) years of age; or
A member of the armed forces or the merchant marine of the United States or its allies.
Conrad is correct in asserting that the specific language of page five is
designed to be a self-proving clause. Indeed, it verbatim matches some forms
suggested for this purpose by respected practice groups. See John A. Gardner, Boilerplate
Will Provisions, Indiana Continuing Legal Education Forum Estate Planning Workshop 20-23 (1993).
But the statute says a will may be self-proving if the
will includes an attestation clause . . . that indicates [self-proving requirements]. I.C.
29-1-5-3(a). This plainly contemplates that the same clause may both attest and
Moreover, it is well settled that the statute does not require any particular language to constitute an attestation as long as it is clear that attestation is what is intended by the witnesses. Barrkiclow v. Stewart, 163 Ind. 438, 440, 72 N.E. 128, 129 (1904); Modlin v. Riggle, 399 N.E.2d 767, 770 (Ind. Ct. App. 1980) (A full and detailed attestation clause is not necessary under Indiana statutes or cases.) (citations omitted). Nor does language in the document between the operative provisions of the will and the signatures of the attesting witnesses necessarily invalidate the attestation. Potts v. Felton, 70 Ind. 166, 172-73 (1880) (finding a will properly executed even though a memorandum of three lines, signed by the testators wife, intervened between Webster C. Potts signature to his will and the signature of the witness, James H. Potts). Therefore, the mere presence of the self-proving language between the will and the signatures does not compel the conclusion that the witnesses were not attesting to the will. Even some language inconsistent with provable facts may precede the attesting witnesses signatures but not necessarily invalidate attestation. For example, a will was held to be properly executed even though the attestation clause stated that the testator had signed both pages when he had not signed the first page. In re Estate of Parlock, 486 N.E.2d 567, 570 (Ind. Ct. App. 1985). The inconsistency did not invalidate the will because it did not relate to a statutorily required element of execution. Id. The court pointed out that all of the statutory requirements had been met and [n]o evidentiary basis exists which might indicate that the will was unduly executed. Id. The same is true here. Seeking to self-prove with the same signature does not negate an intent to attest as witness.
We recognize that language in the document may negate an intent that a signature constitute an attestation by a witness. To give a trivial example to illustrate the point, if a signature appears under the following: I acknowledge receipt of a copy of the foregoing will, it presumably would not serve as an attesting witness. But that is not the case here. The language of the fifth page plainly evidences an intent to self-prove, but it also refers to the signatories as witnesses and recites the essential facts for attestation, i.e., that each witness signed in the presence of the testator and each other.
Conrad points out that the clause preceding the witnesses signatures seems to assert that the witnesses had already signed the will when they signed page five. In fact, the signatures appear only on page five. This discrepancy does not invalidate their signatures as witnesses. The witnesses were not required to attest to the will before this clause, and minor inconsistencies are not sufficient to defeat the plain intent of the witnesses. See Potts, 70 Ind. at 172; Estate of Parlock, 486 N.E.2d at 570. The witnesses met all of the statutory requirements by signing the will as witnesses in the presence of Dellinger and of each other. Therefore, the witnesses properly attested to the will and the trial courts rejection of Ms. Conrads challenge to the will was correct.
Finally we note that the General Assembly recently enacted legislation amending the statute at issue to explain more clearly the methods for properly witnessing wills. 2003 Ind. Legis. Serv. 4 (West). To address the issue of the effect of language inserted between the terms of a will and witness signatures, the amendment revises subsection (c) to make it clear that attestation or self-proving language preceding the witnesses signatures does not invalidate the will. The subsection now reads in relevant part, [a] will that is executed substantially in compliance with subsection (b) will not be rendered invalid by the existence of (1) an attestation or self-proving clause or other language; or (2) additional signatures; not required by subsection (b). The legislation also adds section 3.1 to the statute, which says: [i]f the testator and witnesses sign a self-proving clause that meets the requirements of subsection (c) or (d) at the time the will is executed, no other signatures of the testator and witnesses are required for the will to be validly executed and self-proved. This language addresses exactly the situation at issue here and clearly provides that one set of signatures following a self-proving clause can serve both to attest and self-prove a will.
If the statute as it currently reads had been in effect when Dellingers will was executed, there would be no question that the will was properly witnessed. We think that the 2003 amendments were simply the most recent in a long line of changes to the statute that were meant to eliminate the need for live witness testimony to prove the validity of a will signed by the testator and witnesses in the presence of each other. In 1978, the legislature first provided for wills to be self-proving and require no live testimony to prove execution. 1978 Ind. Acts 132, Sec. 2. In 1983, the legislature amended the statute to make clear that wills could be executed, attested, and made self-proving with one set of signatures. 1983 Ind. Acts 273, Sec. 1. In the years that followed, the legislature twice attempted to clarify the requirements for attesting and self-proving a will. 1985 Ind. Acts 273, Sec. 1; 1989 Ind. Acts 262, Sec. 1. All of these amendments were intended not to make substantive changes, but to dispel any remaining confusion over the intended meaning of the statute. They do not imply that wills executed in the manner used in this case were invalid. Rather, they evidence a consistent legislative intent to simplify this process and eliminate unnecessary procedures.