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Probate Court Evidentiary and Procedural Potential Pitfalls

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By Judge William D. Motlow and R. Bradley Phillips


There is a misconception among some attorneys that the Rules of Evidence do not apply during proceedings in the probate courts of this state. Rule 1101 of the Rules states the “rules of evidence apply in all proceedings in the courts of Alabama.” Further, Ala. Code § 12-13-12 affirms that the Rules are applicable in probate court proceedings. From a practical standpoint, however, how strictly the Rules are enforced varies from probate court to probate court. In most counties, the probate judge is not an attorney. While there certainly are a number of outstanding non-attorney probate judges in this state, the Rules routinely cause confusion and argument among even the most experienced of attorneys. As such, if you find yourself representing a client in a probate court where you do not ordinarily practice, it is a good idea to inquire about the expectations of that particular judge and his general adherence to the Rules.


Everyone needs a will, if for no reason other than to ensure that our loved ones are not burdened with securing a bond and filing seemingly endless reports and accountings with the court. However, any old document setting forth a decedent’s desires for the distribution of her assets upon her passing will not suffice, or at least will not suffice without a fight.

Most common questions regarding wills can be answered by a thorough review of the Alabama Probate Procedures Act, codified at Title 43, Chapter 8 of the Code of Alabama. Any person who is 18 years of age or older and who is of sound mind may make a will.[i] Wills executed in this state, other than the few which may have been executed so long ago as to make them subject to an earlier Alabama statute, are required to be in writing, signed by the testator or in the testator’s name by some other person in the testator’s presence taking direction from the testator, and signed by at least two other persons, each of whom must have either witnessed the testator sign the document or must have witnessed the testator’s acknowledgement that she/he signed the document.[ii] Best practice demands that an attorney overseeing the execution of a will follow the letter of the law, lest he find himself in a pickle when a will contest is lodged and a subscribing witness testifies that, in reality, the attorney’s assistant merely walked the at-issue will down the hallway into his office, asking for a signature on a witness line on the will. The careful attorney will additionally take precaution to avoid allowing a person who is or may become interested in the estate from subscribing as a witness to the execution of the will.

While there are certainly other methods of proving a will, the attorney looking to assist in the seamless transition of a testator’s assets to her intended heir(s) will additionally demand that a will be properly attested to and notarized. Because the proponent of a will carries the burden of making a prima facie case that it was properly executed, the careful practitioner will prefer to cause to be drafted a self-proved will. [iii]A self-proved will[iv] additionally contains a sworn acknowledgement by the testator and affidavits by the subscribing witnesses. If a will is self-proved, its proper execution is presumed and it shall be, absent proof of forgery or fraud, admitted to probate without additional evidence of validity.[v]

What if a will is alleged to have existed at one time but is now lost? The Alabama Supreme Court recently held[vi] that the proponent of a lost will must prove: (1) the existence of a properly executed will instrument, (2) the loss or destruction of that instrument, (3) that the testator never revoked the instrument, and (4) the substance and effect of the contents of the instrument. It is also not uncommon for an original will to be lost but a photocopy of it can be produced. In such a situation, the first and fourth prongs of the aforementioned test are met by the photocopy, but the proponent of the photocopy retains the burden of proving the original will was not lost or destroyed with the intention of revoking it, which will be the court’s presumption.

Simply turning a will over to the probate court for recording, without more, will not result in the issuance of letters testamentary. Surrender of the will must be accompanied by some evidence that the proponent of the will desires that it be admitted to probate.[vii] Any executor, devisee, or legatee named in a will, or any person interested in the estate or who has custody of the will, may propound the will upon the proper probate court for admission.[viii] If requested to do so by a person interested in the decedent’s estate, one who has custody of a decedent’s will must deliver it to someone able to probate the will.[ix] One intending to probate a will must do so with some haste, as a will filed for probate more than five years after the date of the decedent’s death is ineffective and may not be admitted.[x]

Testamentary Capacity and Undue Influence

Will contests are frequently filed in probate courts prior to the issuance of letters testamentary. Appellate courts in Alabama have held that the “evidentiary standard to establish testamentary capacity is very low.”[xi] Opponents will often present medical records that show the testator had been diagnosed with dementia before the will was executed. Such a diagnosis alone is insufficient to prove a lack of testamentary capacity. Neither does being declared incapacitated during a guardianship proceeding necessarily render someone incapable of formulating testamentary capacity. Generally, a testator needs only to understand what property she owns, be able to name to whom she wants to give that property, and understand that she is executing a will.[xii] There are instances in which a testator lacks testamentary capacity. However, the evidence in such a case is more likely to show that a will was procured by undue influence rather than demonstrate a lack of testamentary capacity.

“A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator, (2) the influence of the beneficiary is dominant and controlling in the relationship, and (3) there is undue activity by the beneficiary in procuring the execution of the will.”[xiii] To establish the first prong, a contestant need only establish that there existed a close relationship (generally a family member, close friend, neighbor, caretaker, etc.) between the testator and the accused beneficiary. The second prong is generally more difficult to prove. Medical records might be offered to establish that the testator had been diagnosed with a cognitive decline that might not rise to the level of testamentary incapacity but which potentially shows that he was more likely to be manipulated or taken advantage of. Medical evidence might also demonstrate a physical infirmity that could have made the testator more reliant (for transportation, meals, medication, etc.) on the person with whom he had the confidential relationship. Bank records tending to prove that the beneficiary had access to accounts or showing that the decedent frequently provided the beneficiary with money might also prove to be valuable evidence. These items in the aggregate could suggest undue influence.

Establishing the third prong requires evidence that the favored beneficiary took undue action to procure the will. This could include evidence that the beneficiary caused the will to be drafted by contacting the attorney who drafted the will, being present while the will was executed, driving the testator to and from the attorney’s office for the purpose of executing the will, and/or paying for the will, perhaps even out of the testator’s funds, to which the beneficiary might have gained access in an untoward manner. The attorney drafting the will might be a witness regarding the third prong of the test.

If the first three prongs are established by the opponent of the will, the burden shifts to the proponent to prove that there was no undue influence in the generation and execution of the will.

Guardianship of an Incapacitated Person

Section 26-2A-20(8) of the Code of Alabama defines an incapacitated person as “[a]ny person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.” Upon the filing of a petition for guardianship over a person suffering from one or more of these conditions, the court will implement a number of safeguards to protect the alleged incapacitated person. If the person is not represented by counsel, the court will appoint an attorney to act as guardian ad litem. The court will also appoint a physician to examine the person and provide a written report. A court representative, generally a social worker, will be appointed to interview the person, conduct an investigation, and provide a written report. These reports may contain hearsay. The person has the right to cross-examine the author of the report as well as call as a witness any person who was interviewed in order to generate those reports. It might be appropriate to ask the judge to refrain from considering a portion of a report that contains clearly inadmissible evidence. The person has the right to present evidence on his own behalf, which could include documents, medical or otherwise, which must be properly authenticated and fall within one of the exceptions to the hearsay rule in order to be admissible.

Section 26-2A-107 of the Code of Alabama authorizes a judge of probate to issue temporary letters of guardianship for up to 30 days if an emergency exists. While the code does not define an “emergency,” a recent Alabama Supreme Court decision[xiv] indicates that there must be some unforeseen circumstance that requires immediate action in order to prevent substantial harm. It is not enough to simply allege that a person is incapacitated. A petition requesting temporary letters of guardianship should state in the petition, with specificity, the facts as to why an emergency exists and be prepared for that petition to be heavily scrutinized by the court.

Involuntary Commitment

There exist unfortunate circumstances in which members of our society, due to mental illness, become dangerous to themselves and/or others, requiring very specific and often immediate cooperation between the bench, the bar, medical professionals, and law enforcement officials. These situations are often encountered when either a concerned family member or a close friend of an individual in a mental health crisis suddenly appears at the probate judge’s office, complaining of the at-issue individual’s current mental state and violent ideations, actions, or inactions. At other times, the individual has been involved in an incident with law enforcement and the probate court receives a call from an officer with special mental health training, describing the incident and seeking direction how to file a petition for involuntary commitment of the individual. An attorney may receive a call from the probate judge’s office asking if the attorney can immediately meet with a complaining witness to generate a petition for involuntary commitment.

Anyone may file a petition seeking the involuntary commitment of another person.[xv] The petition must be in writing, must be properly sworn, and must be filed in the probate court of the county in which the respondent is located[xvi]–a fact that should be observed by petitioners who are seeking the commitment of an individual who is, at the time of filing, temporarily housed at a hospital or other type of facility in another judicial circuit. The petition must contain the following information: (1) the name and address, if known, of the respondent; (2) the name and address, if known, of the respondent’s spouse, next-of-kin, or legal counsel; (3) the fact that the petitioner has reason to believe the respondent is mentally ill; (4) detailed facts that tend to show the petitioner’s belief is based on specific behavior, acts, attempts, or threats; (5) the names and addresses of other persons with knowledge of the respondent’s mental illness who may be called as witnesses; and (6) any other information.

The petitioner should make liberal use of the “any other information” allowance to include relevant past instances of mental health-related violent outbursts to establish that the petitioner’s fear is reasonable and that the respondent is or could become dangerous. This could include information regarding any weapons the respondent might have, whether the respondent is known to abuse substances, and any prescribed psychotropic medication(s) the respondent is or should be taking.

Specific facts are necessary to survive the probate judge’s initial review of the petition. This will place the petitioner in a position in which, especially if the respondent’s guardian ad litem recognizes the need for the respondent’s continued care, the petitioner might avoid being forced to testify in open court regarding what are often embarrassing details of the respondent’s life. Testimony such as that can create a permanent rift between the petitioner and the respondent who may plan on living together after the respondent is released from the treatment facility. A respondent shall not be immediately taken into custody and held unless such detention is necessary to keep the respondent from doing substantial harm to herself or others or to keep the respondent from fleeing the jurisdiction.[xvii] This makes detailing specific facts alleging potential harm doubly important lest the petitioner be unable to garner immediate assistance for the in-crisis respondent, thus largely defeating the purpose of filing the petition in the first place.

If the petition survives the initial review by the probate judge, the judge may order that the respondent be taken into custody by the sheriff and placed in an acute crisis facility pending the outcome of a probable cause hearing to test the sufficiency of the petition. That hearing must take place within seven days of the respondent’s being taken into custody.[xviii] This is a preliminary hearing only, and many probate courts will consider any relevant evidence in this hearing, including hearsay and other evidence which might be excluded at the final hearing. The practitioner should be cautioned, however, that if the only evidence presented at the hearing is hearsay, the petition will likely be dismissed.

If the court determines probable cause exists to hold the respondent for further observation and treatment, the court will issue an order to that effect, and it will also set a final hearing to occur within 30 days of the respondent’s being served with notice of the proceeding.[xix] Many respondents are successfully diagnosed, treated, and released to a less restrictive alternative environment before the final hearing.

If a final hearing occurs, the Rules are applicable and must be observed.[xx] The respondent should be present at the final hearing if such can be safely accomplished and if her presence does not hinder the proceedings being conducted in an orderly fashion.[xxi]

At the conclusion of evidence, if the court is convinced the respondent meets the criteria for involuntary commitment, the court can order that the respondent be forced to undergo either inpatient or outpatient treatment for a period not to exceed 150 days[xxii] based on what the court believes is the least restrictive necessary means available and appropriate for the respondent while remaining effective.[xxiii]

If inpatient commitment is ordered, the director of the mental health facility at which the respondent is placed may file, not less than 30 days before the expiration of the then-current commitment order, a petition for a renewal order detailing why the renewal is sought and why less restrictive means of treatment are not appropriate for the particular respondent.[xxiv]

[i] § 43-8-130.
[ii] § 43-8-131.
[iii] Anderton v. Latham, 342 So. 2d 779 (Ala. 1977).
[iv] See §43-8-132.
[v] Id.
[vi] Taylor v. Hoehn, 299 So. 3d 244 (Ala. 2020); see also Tyson v. Tyson, 521 So. 2d 956 (Ala. 1988).
[vii] Guyton v. LaBossiere, 423 So. 2d 841 (Ala. 1982).
[viii] § 43-8-160.
[ix] § 43-8-270.
[x] § 43-8-161.
[xi] Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994).
[xii] Ex Parte Helms, 873 So. 2d 1139, 1147 (Ala. 2003).
[xiii] Pirtle v. Tucker, 960 So. 2d 620, 628 (Ala. 2006).
[xiv] Ex Parte Bashinsky, 2020 WL 3581729 (July 2, 2020).
[xv] § 22-52-1.2.
[xvi] Id.
[xvii] Ala. Code § 22-52-7(b).
[xviii] Id. at § 22-52-8(a).
[xix] Id. at § 22-52-8(b).
[xx] Id. at § 22-52-9(5).
[xxi] Id. at § 22-52-9(1).
[xxii] Id. at § 22-52-10.3(d).
[xxiii] Id. at § 22-52-10.1(a).
[xxiv] § 22-52-10.6(a).