Opinion
No. 74-080
Decided October 1, 1974.
Urging that trial court erred in determining will was not executed under undue influence, caveatrix appealed from final order admitting the will to probate.
Order Affirmed
1. WILLS — Attestation Clause — Prima Facie Evidence — Facts Stated. The attestation clause of a will is not conclusive, but is only prima facie evidence of the facts stated therein.
2. Validity Disputed — Undue Influence — Evidence — Liberally Admitted — — Testimony of Wife — Contradict — Attestation Clause — Properly Considered. When the validity of a will is disputed based on the allegation of undue influence, the trial court should be liberal in admitting evidence of all circumstances surrounding execution of the will; thus, in situation where, in attestation clause of will, the name of the proponent, rather than that of the decedent, preceded the phrase "in his presence and by his direction," the fact that proponent's wife may be "interested" in the outcome of the litigation does not preclude the trial court from considering her testimony to contradict the recitals of the attestation clause.
Appeal from the District Court of El Paso County, Honorable Robert W. Johnson, Judge.
Isaac, Walsh, Gibbons Johnson, Robert Isaac, Victor J. Gibbons, for caveatrix-appellant.
Sheldon, Bayer, McLean Glasman, George M. Allen, for proponent-appellee.
The caveatrix appeals from a final order admitting the will of Joseph Stanley Guy White to probate. We affirm.
Proponent is the executor and sole beneficiary under the will of the deceased. Claiming to be the wife of decedent, caveatrix contested the probate of the will on two grounds: (1) That the signature on the will was not the signature of the deceased; and (2) that even if the will were executed by the deceased, it was executed as the result of undue influence by the proponent. At oral argument, caveatrix conceded that the evidence was sufficient to show that the will was signed by the decedent. Hence, the sole issue is whether the trial court erred in its determination that the will was not executed under undue influence.
The will was prepared on a printed form by completing blank spaces. The attestation clause recites:
"We, the Undersigned, whose names are signed as attesting witnesses to the foregoing Will, do hereby certify that on this 28th day of February, A.D. 1966, the foregoing instrument was subscribed by the said Joseph Stanley Guy White, 1420 N. Nevada Ave., Colo. Springs, for the said Stanley Robert White [proponent] in his presence and by his direction and in the presence of us and each of us, and thereupon the said Joseph Stanley Guy White declared the same to be his Last Will and Testament, and that each of us in his presence and at his request, and in the presence of each other, attest the same by subscribing our names thereto, and that we believe the said Joseph Stanley Guy White was of sound mind and memory at the time of signing and acknowledging said Will." (emphasis added)
The subscribing witnesses to the will were deceased and thus did not testify.
Proponent's wife testified that proponent was not in Colorado at the time the will was signed. Caveatrix offered no evidence to show undue influence. Rather, caveatrix relied upon C.R.S. 1963, 153-5-32, which provides that the attestation clause constitutes prima facie evidence of the facts stated therein. Based on this statute and by interpreting the attestation clause to mean that decedent's will was prepared for proponent in proponent's presence and at his direction, caveatrix contends that the attestation clause established a prima facie case of undue influence. In addition, while it is conceded that proponent's wife was not barred from testifying in this case by the Dead Man's statute, C.R.S. 1963, 154-1-2, caveatrix asserts that because the wife is "interested" in the outcome of the litigation, as the only witness testifying on the issue of undue influence, her testimony is insufficient to overcome a prima facie case.
[1,2] Even if we construe the phrase "in his presence and by his direction" to refer to the proponent and not the decedent, see Hale v. Wheeler, 108 Colo. 119, 114 P.2d 566, still the attestation clause is not conclusive but only prima facie evidence of the facts stated therein. See Estate of Maikka v. Salo, 110 Colo. 433, 134 P.2d 723. When the validity of the will is disputed based on the allegation of undue influence, the trial court should be liberal in admitting evidence of all circumstances surrounding execution of the will. Koch v. Garnier, 110 Colo. 562, 136 P.2d 673. Hence, the fact that proponent's wife may be "interested" in the outcome of the litigation does not preclude the trial court from considering her testimony to contradict the recitals in the attestation clause.
Based on the wife's testimony, the trial court found that proponent was not present in Colorado when the will was executed, and, therefore, concluded that proponent did not exercise undue influence over decedent. Where, as here, the trial court is the fact finder, the credibility, sufficiency, and probative effect of the testimony, as well as inferences and conclusions to be drawn therefrom were matters within the province of the trial court. Gonzales v. Chinn, 121 Colo. 126, 214 P.2d 371. There being competent evidence to support the trial court's findings and conclusion, we affirm. See Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
JUDGE ENOCH and JUDGE KELLY concur.