Filed: Jul. 15, 2015
Latest Update: Jul. 15, 2015
Summary: THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCARC. PER CURIAM . Linda Reagan Shelley appeals the decision of the circuit court, which affirmed the probate court's finding that the will Shelley sought to probate lacked the statutory formalities set forth under section 62-2-502 of the South Carolina Code (Supp. 2014). Shelley argues the signature of a notary public on the testator's (Testatrix)
Summary: THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCARC. PER CURIAM . Linda Reagan Shelley appeals the decision of the circuit court, which affirmed the probate court's finding that the will Shelley sought to probate lacked the statutory formalities set forth under section 62-2-502 of the South Carolina Code (Supp. 2014). Shelley argues the signature of a notary public on the testator's (Testatrix) ..
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THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCARC.
PER CURIAM.
Linda Reagan Shelley appeals the decision of the circuit court, which affirmed the probate court's finding that the will Shelley sought to probate lacked the statutory formalities set forth under section 62-2-502 of the South Carolina Code (Supp. 2014). Shelley argues the signature of a notary public on the testator's (Testatrix) will constitutes a second witness under section 62-2-502. We agree and reverse.
"An action to contest a will is an action at law." In re Estate of Pallister, 363 S.C. 437, 447, 611 S.E.2d 250, 256 (2005). When our appellate courts review an appeal from the probate court to the circuit court, we apply the same standard of review that the circuit court applied on review of the probate court's order. In re Estate of Weeks, 329 S.C. 251, 260, 495 S.E.2d 454, 459 (Ct. App. 1997). This court should uphold the findings of the probate court in an action at law if there is any evidence to support them. Id.
Section 62-2-502 provides every will must be:
(1) in writing;
(2) signed by the testator or signed in the testator's name by some other individual in the testator's presence and by the testator's direction; and
(3) signed by at least two individuals[,] each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.
As an initial matter, we disagree with Respondent Ramona Becker's contention that Shelley's appeal is barred by the two-issue rule. We find the probate court's decision was essentially based on one ground alone: whether the signatures on the will satisfied the statutory formalities. See Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 328, 730 S.E.2d 282, 284 (2012) ("`Under the two issue rule, where a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become law of the case.'" (quoting Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010))). As to the merits, there is no dispute that the first two requirements under 62-2-502 are satisfied: the will is (1) in writing and (2) signed by Testatrix. The only issue is whether the signatures of Sara Jones and Delores Belin-Burns satisfy the third requirement, and we find they do.
Both Jones and Belin-Burns witnessed "either the signing or [Testatrix's] acknowledgment of the signature or of the will." S.C. Code Ann. § 62-2-502(3). We see no reason to exclude Belin-Burns as an attesting witness simply because she signed in her official capacity as a notary public. Admittedly, Belin-Burns did not testify that she was signing as a witness. Rather, she testified Testatrix asked her to "notarize [Jones's] signature." Nevertheless, though Belin-Burns may not have intended to act as an official witness, she still observed Testatrix's execution of the will and then by signing, she accomplished the purpose and statutory dictates of section 62-2-502 by attesting and subscribing to the will.1 See Land v. Burkhalter, 656 S.E.2d 834, 835 (Ga. 2008) ("Thus, [the notary] may not have intended to act as an official witness. However, by observing the Testatrix's execution of the will and then by signing, in the presence of the Testatrix, in the capacity of a witness, she accomplished the objective purpose of OCGA § 53-4-20(b) by attesting and subscribing [to] the will."); In re Estate of Friedman, 6 P.3d 473, 476 (Nev. 2000) (finding the notary notarized the witness's signature, rather than the testator's, and despite the fact that the notary intended to sign only as a notary, "the unique facts and circumstances of this case" were such as to justify a finding that the statute had been complied with as long as the notary signed in the presence of the testator); Estate of Teal, 135 S.W.3d 87, 91 (Tex. App. 2002) (finding a notary public was a subscribing witness despite the notary's testimony that she signed the will "to witness to the signature on the will," and not as "a subscribing witness"; "We now hold that, under the facts in this case, the notary, although she did not intend to sign as a subscribing witness, did in fact serve as a subscribing witness. . . . Because there is no requirement that a will be notarized, [the notary's] signature served no purpose other than as a witness.").2
Accordingly, the circuit court's decision is
REVERSED.
THOMAS, KONDUROS, and GEATHERS, JJ., concur.
