## Facts

- Howard Griffith died, and his brother, Garland L. Griffith, sought to probate an alleged non-holographic will naming Garland as a principal beneficiary.
- Howard’s sons, Jimmy L. Griffith and Jerry H. Griffith, filed a caveat contesting probate, asserting the instrument was not validly executed and was the product of undue influence.
- The instrument contained Howard’s signature, two purported witness signatures (Eric M. Scott and Patrick O. Bell), a signed “certificate” reciting Howard declared the document to be his will, and a notarized “affidavit of subscribing witnesses” signed by Scott and Bell and notarized by Judy C. Warren Lofton.
- After the caveat was filed, Scott and Bell executed affidavits stating they had not witnessed a will and had not signed an affidavit of subscribing witnesses.
- At the hearing, Lofton testified about her usual notarial practices and identified her signature but did not specifically recall notarizing this document.
- Scott and Bell testified they were not told they were signing a will, did not read the documents, believed they were witnessing a power of attorney or other papers, and would have refused to sign had they known it was a will.
- Garland offered no evidence rebutting the witnesses’ testimony.
- The chancery court rejected probate, finding the statutory execution requirements were not met; Garland appealed.

## Issues

1. Whether a non-holographic will is “properly executed” under Mississippi Code § 91-5-1 when the subscribing witnesses lacked knowledge that the instrument they signed was a will.
2. Whether the chancellor committed manifest error by crediting the witnesses’ testimony over the will’s attestation clause and notarized affidavit and rejecting probate.

## Decision

- The Mississippi Supreme Court affirmed the chancery court’s order refusing to admit the instrument to probate.
- The Court held the will was not duly executed under Mississippi Code § 91-5-1 because the witnesses did not have knowledge they were attesting a will.
- The Court held the chancellor did not commit manifest error in accepting the witnesses’ testimony and finding the statutory attestation requirement unsatisfied.
- The Court concluded that the certificate and notarized affidavit were not conclusive proof of valid execution when credible testimony showed the witnesses lacked the required knowledge.

## Legal Principles

- Under Mississippi Code § 91-5-1, a non-holographic will must be attested by two credible witnesses.
- “Attestation” requires more than signing where directed; it includes a mental component of conscious witnessing, along with the physical act of subscription.
- Subscribing witnesses must have knowledge of the purpose of their attestation; they must understand they are signing as witnesses to a will.
- Documentary recitals in an attestation clause or notarized subscribing-witness affidavit may be rebutted by credible testimony that the witnesses did not know they were attesting a will.
- Appellate review of a chancellor’s factual and credibility determinations in a will contest is deferential and will be reversed only for manifest error.

## Conclusion

Because both purported attesting witnesses credibly testified they did not know the document was a will when they signed, the statutory requirement of attestation was not satisfied, and the chancery court’s refusal to admit the instrument to probate was properly affirmed.


In re Estate of Griffith, 30 So. 3d 1190 (Miss. 2010)