Rel: June 26, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026
SC-2024-0444
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-18-1)
PER CURIAM.
SC-2024-0444
The Monroe Circuit Court ordered William C. Harper to pay almost
$6.3 million in attorneys' fees and costs to his sister, Alice Lynn Harper
Taylor, following lengthy litigation over their deceased mother's estate.
We reverse the circuit court's judgment.
I.
Harper and Taylor's mother, Alice Earl Harper, died on March 1,
2013, leaving behind a net worth exceeding $13 million. (C. 5659) She
also left behind multiple purported wills. Relevant here are two such
wills, one from 1995 and another from 2007. These competing wills have
yielded lengthy litigation and multiple trips to this Court. See, e.g.,
Harper v. Taylor, 343 So. 3d 1 (Ala. 2021) (plurality opinion) ("Harper
III"); Ex parte Taylor, 252 So. 3d 637 (Ala. 2017); Taylor v. Estate of
Taylor, 164 So. 3d 542 (Ala. 2014).
At bottom, Harper maintains that the 1995 will (which favors
Taylor) is invalid, while Taylor insists that the 2007 will (which favors
Harper) is invalid. The siblings dispute whether their mother lacked
capacity to execute the 2007 will favoring Harper. They also dispute
whether the 2007 will favoring Harper was the product of Harper's
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"undue influence" over his mother in the waning years of her life as she
battled Alzheimer's disease.
In Harper III, the case's most recent trip here, this Court directed
the circuit court to vacate a judgment for Taylor premised on a jury
verdict enforcing the 1995 will in her favor. Harper III, 343 So. 3d at 5.
The Court relied on a state statute governing the transfer of will contests
from a probate court to a circuit court: Upon demand of any party to a
will contest, the probate court "must enter an order transferring the
contest to the circuit court" and also "certify all papers and documents
pertaining to the contest to the clerk of the circuit court." Ala. Code 1975,
§ 43-8-198. Here, the Monroe Probate Court had entered the transfer
order, just as required by this transfer statute. It had even transferred
the pertinent documents as required by the transfer statute. But it had
not actually certified those documents to the circuit-court clerk. That lack
of "strict compliance" with the transfer statute, the Court held, was fatal
to the circuit court's jurisdiction. See Harper III, 343 So. 3d at 5.
Following this Court's decision in Harper III, the Monroe Circuit
Court once again considered the siblings' dispute and once again entered
a judgment for Taylor. The circuit court first vacated its previous
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judgment in favor of Taylor as required by this Court's mandate. The
Monroe Probate Court then certified its records to the circuit court as
required by the transfer statute. In early March 2024, following a second
jury trial, the circuit court once again entered a judgment on a jury
verdict in favor of Taylor.
With this second judgment in hand, Taylor sought the relief at issue
in the current appeal, an award of attorneys' fees and costs against
Harper. For legal authority, Taylor invoked a provision of the Probate
Code under which "costs" of a will contest must be paid by the "contesting
party if he or she fails." Ala. Code 1975, § 43-8-196. She also submitted
testimony, both documentary and in-person, from three attorneys (her
two lawyers and one outside lawyer), supporting her fee claim under the
so-called "Peebles" factors -- i.e., factors this Court recognized in Peebles
v. Miley, 439 So. 2d 137 (Ala. 1983), as governing the determination of
reasonable attorneys' fees. Harper opposed Taylor's request by
contending that the estate should be liable for any award of costs and
attorneys' fees. But he did not otherwise challenge Taylor's request.
Following a hearing, the circuit court ordered Harper to pay Taylor
almost $6.3 million in attorneys' fees and costs. Because Harper's
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challenge to the 1995 will "was not supported by credible evidence," it
concluded that costs and fees should be taxed against him pursuant to
the will-contest costs statute, § 43-8-196. Citing the Peebles factors, the
circuit court then calculated the amount of the award. Based on "a
reasonable and proper attorney fee rate" of $800 an hour, the court
ordered Harper to pay one of Taylor's attorneys $1,969,600 (for his 2,462
hours of "reasonable, proper, and necessary" work) and another of
Taylor's attorneys $3,868,000 (for his 4,835 hours of such work). The
court also ordered Harper to pay $455,534.54 in "reasonable and
necessary" costs, bringing the total fee and costs award against Harper
to $6,293,134.54.
Following the denial of a postjudgment motion, Harper timely filed
his notice of appeal to this Court.
II.
On appeal, Harper raises two arguments challenging the circuit
court's jurisdiction to enter the attorneys' fee award against him. Both
challenges raise purely legal questions, which we review de novo. See
Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004).
A.
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First, Harper argues that the circuit court lacked subject-matter
jurisdiction because, "following this Court's … remand in the most recent
Harper opinion, no new case was ever docketed." Harper's brief. p. 21. In
other words, on Harper's reading of the transfer statute, a circuit court
must docket a will contest "following a transfer from and certification by
the probate court." Id. (emphasis added). Because the circuit court
continued to "enter orders and judgments in the case this Court held was
void [in Harper III]," Harper contends, the circuit court "[failed] to comply
exactly" with the transfer statute and therefore "never obtained
jurisdiction." Id. at 23 (emphasis added).
We disagree. For one thing, the mandate in Harper III required
only that the circuit court vacate its February 2021 judgment. It did not
hold that the underlying case was void, and it did not require that the
circuit court dismiss the case. Nothing in Harper III spoke to the
continuing validity of the case number used to "enter orders and
judgments" in the Harper siblings' will contests.
More importantly, the transfer statute does not say what Harper
thinks it says. That statute does indeed require a transferred will contest
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to be "docketed by the clerk of the circuit court." § 43-8-198. But it does
not prescribe the hard-and-fast sequencing mandate Harper proposes:
"Upon the demand of any party to the contest, made in
writing at the time of filing the initial pleading, the probate
court, or the judge thereof, must enter an order transferring
the contest to the circuit court of the county in which the
contest is made, and must certify all papers and documents
pertaining to the contest to the clerk of the circuit court,
and the case shall be docketed by the clerk of the circuit
court and a special session of said court may be called for the
trial of said contest or, said contest may be tried by said circuit
court at any special or regular session of said court. The issues
must be made up in the circuit court as if the trial were to be
had in the probate court, and the trial had in all other respects
as trials in other civil cases in the circuit court."
Id. (emphasis added). This statutory language describes the procedural
steps necessary to transfer a will contest in a particular sequence,
perhaps the most natural sequence given the usual course of events. But
describing the steps in sequence is not the same thing as mandating that
sequence, as the text of the transfer statute itself reveals. After all, the
statute requires a transfer demand to occur "at the time of filing the
initial pleading." Id. (emphasis added). But no similar mandatory-timing
language exists with respect to the docketing requirement at issue in this
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case.1 On that specific requirement, all that is required is that the will
contest "be docketed by the clerk of the circuit court" at some point.
It is true that, "[o]ver the past several decades," our Court has
required "strict compliance" with the transfer statute as a "necessary"
prerequisite for jurisdiction to "attach" in a circuit court. Harper III, 343
So. 3d at 3; see id. (collecting cases). But the cases embodying this policy
are meaningfully different from the present case. In Jones v. Brewster,
282 So. 3d 854, 860 (Ala. 2019), the circuit court lacked jurisdiction
because the record was "devoid of a transfer order from the probate
court." (Emphasis added.) See also Burns v. Ashley, 274 So. 3d 970, 974
(Ala. 2018) (same). In Kaller ex rel. Conway v. Rigdon, 480 So. 2d 536,
538 (Ala. 1985) (plurality opinion), the circuit court lacked jurisdiction
because the transfer proponent "did not file a pleading at the same time
he filed the motion to transfer." And in Harper III, of course, the circuit
court lacked jurisdiction because the probate court wholly failed to certify
its record to the circuit-court clerk. In each of those decisions, unlike here,
1See, e.g., Harper III, 343 So. 3d at 4 (quoting Jones v. Brewster,
282 So. 3d 840, 857-58 (Ala. 2019)) (listing "seven requirements" evident
from the text of the transfer statute but not mentioning timing with
respect to the docketing requirement).
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there was a total failure of compliance with a core requirement of the
transfer statute. Here, the circuit court did comply with the transfer
statute, strictly speaking.
It is equally true that we have interpreted the transfer statute in
light of its objective, manifest purpose -- that is, as Justice Mitchell,
writing for a plurality of this Court, put it in Harper III, the "important
reason[s]" underlying its requirements. 343 So. 3d at 4.2 The docketing
requirement's purpose appears to be to facilitate the transfer statute's
later, substantive case-handling requirement: "The issues must be made
up in the circuit court as if the trial were to be had in the probate court,
and the trial had in all other respects as trials in other civil cases in the
circuit court." § 43-8-198. The docketing procedure that occurred below
will serve this manifest purpose just as well as if it had occurred after the
probate court entered its transfer order and certified its record. When a
circuit court has met both the purpose of the transfer statute and its
2See also Harper III, 343 So. 3d at 6-7 (Shaw, J., concurring in the
result) (discussing the role of statutory purpose in interpreting the
transfer statute); Jones v. Brewster, 282 So. 3d 854, 865-66 (Ala. 2019)
(Sellers, J., dissenting) (interpreting the transfer statute based on the
"policy behind [its] requirement[s]").
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"terms," we cannot hold it in error. Harper III, 343 So. 3d at 7 (Shaw, J.,
concurring in the result) (emphasis added).
B.
Harper's fallback jurisdictional argument applies "[e]ven assuming
that the trial court did obtain subject-[matter-]jurisdiction over the case
as a whole following the probate court's certification of [its] records on
remand" after Harper III. Harper's brief, pp. 23-24. In that scenario, he
argues, the circuit court at least lacked jurisdiction to award attorneys'
fees for the time Taylor's attorneys spent in circuit court before the
probate court certified its record. Those precertification proceedings, he
argues, were a "complete nullity" in the eyes of the law.
Harper's reliance on McNutt v. Beaty, 370 So. 2d 998, 1000 (Ala.
1979), in support of this argument is misplaced. In McNutt, this Court
held that, after a case is dismissed for lack of subject-matter jurisdiction,
no award of attorneys' fees may be entered. In this case, the opposite has
occurred: After Harper III, the circuit court effectively gained subjectmatter jurisdiction upon the probate court's certification of its record to
the circuit-court clerk. As Taylor puts it, "the jurisdictional defect was
cured." Taylor's brief p. 21.
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With jurisdiction to enter the fee award, there is nothing to
distinguish the circuit court's order below from countless other fee
awards premised on work done before a court obtains jurisdiction. Taylor
gives several examples of how her attorneys' precertification work
contributed to their postcertification work. She identifies witnesses who
testified in the first trial who died before the second trial. She also
identifies witnesses whose depositions were taken in preparation for the
first trial and then later used for the second trial. Harper may believe
that Taylor's attorneys claimed excessive fees for their precertification
work. But that concern goes to the reasonableness of the fee award, not
the circuit court's subject-matter jurisdiction.
III.
With the jurisdictional issues out of the way, we turn to Harper's
argument that the circuit court's fee award, in his view, fails to comply
with the relevant statute governing an award of "costs" in a will contest,
§ 43-8-196. That statute provides that the "costs" of a will contest --which, under current Alabama caselaw, includes attorneys' fees -- "must
be paid by the party contesting the will if he or she fails." Failure, in this
context, does not mean merely losing the will contest. Rather, this Court
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has construed the "if he or she fails" language of § 43-8-196 to mean that,
" 'if there is some credible evidence offered by the contestant in support
of the theory of the contest, the contestant is not to be charged with
paying the attorneys' fees of the proponent.' " McGee v. McGee, 91 So. 3d
659, 670 (Ala. 2012) (quoting Bleidt v. Kantor, 412 So. 2d 769, 771 (Ala.
1982)). We agree with Harper that, under this "some credible evidence"
test, he cannot be compelled to pay attorneys' fees in this case.
In particular, we believe that reversal is required under this Court's
decisions in McGee, supra, and Bleidt, supra. In McGee, Willis Banks
McGee ("Willis") successfully defended a will contest filed by his brother,
John Coleman McGee ("Jack"), by obtaining a summary judgment on
most of Jack's claims and obtaining a judgment as a matter of law, at the
close of Jack's evidence, on Jack's remaining claim. Willis asked the trial
court to order Jack to pay his attorneys' fees, but the court refused, and
Willis appealed to this Court. In holding that the trial court had erred by
denying Willis's request for attorneys' fees, this Court discussed its prior
decision in Bleidt:
"Bleidt involved a will contest commenced by Nell Bleidt on
the grounds of undue influence and forgery. 412 So. 2d at 770.
The case was tried to a jury, which returned a verdict against
Bleidt and in favor of the proponents of the will. Id.
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Subsequently, the trial court awarded the proponents $10,000
in attorney fees, pursuant to § 43-1-76, which is now § 43-8-196. Bleidt's appeal did not involve a specific challenge to the
sufficiency of the evidence of the grounds for the contest but
did challenge the propriety of the fee award.
"This Court in Bleidt reversed the fee award on the basis
of the litigation represented by Clark v. Clark, 280 Ala. 644,
197 So. 2d 447 (1967) ('Clark I') (reversing a judgment entered
on a jury verdict for the contestant and rendering a judgment
in favor of the proponent on the ground that the evidence was
insufficient to support the contest); and Clark v. Clark, 287
Ala. 42, 247 So. 2d 361 (1971) ('Clark II') (holding that
attorneys who represented the 'executor in the will contest' in
Clark I were entitled to a fee to be paid by the contestant).
"Discussing Clark I and Clark II, the Court in Bleidt
explained:
" '[Clark II] involved an allowance of attorneys'
fees under Title 61, § 59, Alabama Code of 1940,
the predecessor of Code of 1975, § 43-1-76 [now
§ 43-8-196]. There this Court was dealing with a
prior will contest which had been successful but
which, upon review, was found to be based upon
insufficient evidence. [Clark I]. In [Clark II]
dealing with the award of attorneys' fees against
the contestant as costs, this Court referred to
[Clark I] as "altogether without merit," or
frivolous. Therefore, this Court held the trial court
had erred in decreeing that the executor's
attorneys be paid from the residuary estate "and
in not taxing such fee against the contestants as
costs in the will contest suit." [Clark II], supra, 287
Ala. 42, 48, 247 So. 2d 361. In other words, this
Court construed § 59 (now [§ 43-8-196]) as
authorizing attorneys' fees against the contestant
who fails only when the contest is without merit.
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That is, if there is some credible evidence offered
by the contestant in support of the theory of the
contest, the contestant is not to be charged with
paying the attorneys' fees of the proponent.
" 'An examination of this record convinces us
that this contest was not "altogether without
merit." To the contrary, the contestant adduced
credible evidence of undue influence and forgery.
The proponents of the will produced evidence
tending to show an absence of undue influence or
forgery. The trial court properly allowed the jury
to resolve the conflict created by the evidence of
both sides, and the jury found for the proponents.
But the mere fact that the contestant lost could not
under § 43-1-76 [now § 43-8-196] and Clark [II],
287 Ala. 42, 247 So. 2d 361 (1971), be used to
charge the contestant with the proponents'
attorneys' fees as part of the costs.'
"412 So. 2d at 771-72 ….
"In this case, we are presented with no credible evidence
in support of any ground upon which Jack challenged [the]
will. The trial court erred, therefore, in refusing to award
Willis fees and costs."
91 So. 3d at 670-71 (some emphasis added; footnote omitted).
It is thus true that both McGee and Bleidt stated that the issue of
attorneys' fees in a will contest hinges on whether the contestant
presented "credible evidence." McGee, 91 So. 3d at 671; Bleidt, 412 So. 2d
at 771. However, read in context, those cases convince us that the issue
of attorneys' fees in a will contest is not truly an issue of whether the
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contestant actually presented credible, i.e., believable, evidence but,
instead, is an issue of whether the contestant presented evidence that
was sufficient to create a question of fact for a jury to resolve. Indeed,
Bleidt rather clearly indicated that the will contestant in that case could
not be charged with paying the will proponents' attorneys' fees because
the case had been decided by a jury's resolution of conflicting evidence.
Conversely, in McGee this Court held that attorneys' fees should have
been awarded to the will proponent in a case that was resolved in part by
a summary judgment and in part by a judgment as a matter of law
following the presentation of the contestant's evidence. In other words,
the will contestant in McGee did not present any evidence that was
sufficient to get his case before a jury.
Caselaw from the Court of Civil Appeals -- cited by Harper in his
brief -- also indicates that the issue of attorneys' fees in a will contest is
one of sufficiency of the evidence, not credibility of the evidence. In Hester
v. Cox, 682 So. 2d 1381 (Ala. Civ. App. 1996), the Cox family filed a will
contest against the Hester family. Following the denial of the Hesters'
motion for a summary judgment, the case proceeded to a jury trial, at
which the Hesters prevailed. The Hesters then moved for an award of
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attorneys' fees, but the trial court denied that motion. In affirming the
denial of attorneys' fees, the Court of Civil Appeals stated:
"Section 43-8-196, Code 1975, allows for the award of attorney
fees against a contestant if the contestant fails in the will
contest. In construing the predecessor to § 43-8-196, our
supreme court held as follows: '[I]f there is some credible
evidence offered by the contestant in support of the theory of
the contest, the contestant is not to be charged with paying
the attorneys' fees of the proponent.' Bleidt v. Kantor, 412 So.
2d 769[,771] (Ala. 1982).
"In denying the Hesters' request for attorneys' fees, the
trial court explained, 'The Court does not find that the contest
of the will and challenge to the validity of the trusts were
altogether without merit or conducted in bad faith, or that
proponents are otherwise legally or equitably entitled to
attorneys' fees.'
"We find that the trial court's denial of the Hesters'
motion for a summary judgment and its denial of both of their
motions for a directed verdict support the trial court's finding
that the contest was not meritless or conducted in bad faith."
682 So. 2d at 1382 (emphasis added). Similarly, in Bailey v. Sawyer, 991
So. 2d 725, 735 (Ala. Civ. App. 2007), the Court of Civil Appeals held:
"Because we find that Bailey and Pearson offered credible
evidence in support of their theory of this will contest, we
conclude that the trial court did not err in failing to award
attorney fees in this case. This conclusion is supported by the
trial court's denial of Charles's motion for a judgment as a
matter of law after Bailey and Pearson's case-in-chief and the
trial court's denial of Charles's motion to award attorney
fees."
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(Emphasis added.) Once again, these cases indicate that the appellate
court's focus was not on whether the will contestants' evidence was
actually credible in the sense of being believable but, instead, was on the
fact that the evidence was sufficient to create a question of fact for the
jury to resolve.
It appears that this Court's use of the phrase "credible evidence" in
Bleidt (and repeated in McGee) was an unfortunate choice of words. What
the Court should have said -- and what the Court essentially did say with
its analysis -- is that the question to ask in determining whether to award
attorneys' fees in a will contest is whether the contestant presented
sufficient evidence to support his or her claim, not whether the contestant
presented credible evidence. In fact, we have not found an Alabama case
in which a trial court concluded that the evidence was sufficient to submit
a will contest to a jury and then, following an adverse verdict against the
contestant, awarded attorneys' fees to the prevailing party based on the
fact that the contestant's evidence was not "credible." This is for good
reason. A case that has enough conflicting evidence to raise a question of
fact for a jury to resolve is certainly not "frivolous" or " 'altogether without
merit,' " which is the standard that this Court applied in Bleidt and
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McGee. Bleidt, 412 So. 2d at 771 (citation omitted).
According to our caselaw, the purpose of § 43-8-196 is not to punish
will contestants for bringing will contests that, while unsuccessful in
front of a jury, are supported by sufficient evidence. Rather, our caselaw
dictates that the purpose of § 43-8-196 is to prevent will contests that are
"frivolous" or " 'altogether without merit.' " Bleidt, 412 So. 2d at 771
(citation omitted). If will contestants know that they will be saddled with
paying their opponent's hefty attorneys' fees following a losing effort,
based solely on a trial court's subjective credibility determinations
rendered after a jury's verdict, they might be less likely to bring a will
contest -- even one that is supported by evidence that a jury might find
persuasive.
In this case, Harper's will contest was supported by evidence that
was sufficient to create a question of fact for a jury to resolve. Indeed, the
trial court more than once denied a motion for a judgment as a matter of
law during the course of the trial, and at one point the court expressly
stated that it believed the evidence had created "a jury issue" as to the
validity of the two wills being litigated. Thus, as was the case in Bleidt,
we do not think this Court (or the trial court) can say that Harper's will
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contest was "frivolous" or " 'altogether without merit.' " 412 So. 2d at 771
(citation omitted). Rather, Harper presented evidence to support his
claim that the 1995 will is invalid, and Taylor presented evidence
indicating that the 2007 will is invalid. The trial court "allowed the jury
to resolve the conflict created by the evidence of both sides, and the jury
found for [Taylor]. But the mere fact that [Harper] lost could not … be
used to charge [him] with [Taylor's] attorneys' fees as part of the costs."
Id. at 771-72. We see no difference between this case and Bleidt.
IV.
For the foregoing reasons, we reverse the trial court's order
requiring Harper to pay Taylor's attorneys' fees.
REVERSED.
Cook, McCool, and Parker, JJ., concur.
Bowden, Special Justice,∗ concurs in part and concurs in the result,
with opinion.
Bryan, J., concurs in the result.
Judge Benjamin M. Bowden of the Alabama Court of Civil Appeals
∗
was appointed to serve as a Special Justice in regard to this appeal.
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Sellers, J., concurs in part and dissents in part, with opinion, which
Stewart, C.J., and Wise, J., join.
Shaw, J., dissents, with opinion.
Mendheim, J., recuses himself.
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BOWDEN, Special Justice (concurring in part and concurring in the
result).
I concur with all aspects of the main opinion except for the analysis
in Part III.
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SELLERS, Justice (concurring in part and dissenting in part).
I concur in Part II of the main opinion, which addresses the
jurisdiction of the Monroe Circuit Court ("the trial court") to enter the
order under review, but I dissent from Part III of the main opinion, which
reverses the trial court's order directing William C. Harper ("Harper") to
pay the attorney fees and costs incurred by his sister, Alice Lynn Harper
Taylor ("Taylor"), for successfully defending the 1995 will of their mother,
Alice Earl Harper. Attorney fees are recoverable under Alabama law as
part of the costs of an action only when they are authorized by statute,
provided for in a contract, or can be awarded by special equity. Reynolds
v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala. 1985).
Here, the trial court concluded that Taylor was entitled to an award of
attorney fees and costs pursuant to § 43-8-196, Ala. Code 1975. That Code
section provides that the "costs of any [will] contest … must be paid by
the party contesting if he or she fails; otherwise, it must be paid by the
plaintiff or out of the estate." This Court recently reaffirmed that the
word "costs," as that term is used in § 43-8-196, includes attorney fees.
See Boykin v. Land, 428 So. 3d 9 (Ala. 2025). This Court has construed
the phrase "if he or she fails" to mean that, "if there is some credible
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evidence offered by the contestant in support of the theory of the contest,
the contestant is not to be charged with paying the attorneys' fees of the
proponent." Bleidt v. Kantor, 412 So. 2d 769, 771 (Ala. 1982) (emphasis
added). See also McGee v. McGee, 91 So. 3d 659, 670 (Ala. 2012) (same).
Here, the trial-court judge, who presided over the two trials and, thus, is
in the best position to judge the credibility of the testimony, concluded
that Harper's challenge to the 1995 will "was not supported by credible
evidence." The main opinion tends to imply that, because the trial-court
judge allowed the case to go to the jury, there was some set of facts to
credibly support Harper's claims. But that implication or assumption is
belied by the trial court's actions, as expressed in its order. As indicated,
the trial court made a specific finding that Harper's will contest was not
based on credible evidence. Next, the trial court based its computation of
fees and costs on evidence, documentary and in-person, from three
attorneys, as well as consideration of the factors set forth in Peebles v.
Miley, 439 So. 2d 137 (Ala. 1983). Thus, the trial court's order contains
findings to support its significant assessment of attorney fees and costs,
not against the estate, but against Harper. The trial court's actions were
not cursory, but represented a thorough review based on extensive and
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expensive litigation of which the trial-court judge, having presided over
the two trials, had personal knowledge. Because the trial court clearly
had the statutory authority to award Taylor attorney fees and costs when
Harper was unsuccessful in challenging the 1995 will, I would affirm its
order. Thus, I respectfully dissent from Part III of the main opinion.
Stewart, C.J., and Wise, J., concur.
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SHAW, Justice (dissenting).
Section 43-8-196, Ala. Code 1975, in pertinent part, states that, in
a will contest, "[t]he costs of any contest under the provisions of this
article [i.e., Ala. Code 1975, Title 42, Chapter 8, Article 7] must be paid
by the party contesting if he or she fails …." "Costs" has been deemed to
include attorneys' fees, and "if he or she fails" has been deemed to mean
that the contestant did not present "some credible evidence" in support
of the will contest. McGee v. McGee, 91 So. 3d 659, 670 (Ala. 2012). This
interpretation of § 43-8-196 may not be supported by its plain text.
Generally speaking, "costs" would not necessarily refer to "attorneys'
fees," and the phrase "if [one] fails" means that one did not prevail, which
is different from failing to present "some credible evidence." In this case,
the main opinion changes the prior interpretation of "if [one] fails" from
meaning the failure to present "some credible evidence" to meaning that
the contestant did not present "sufficient evidence" to support his or her
claim. Stare decisis counsels me to adhere to our prior caselaw
interpreting § 43-8-196. But I am not inclined to further adjust the
meaning of the Code section if it does not bring us any closer to its plain
language.
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Although William C. Harper argues that he presented sufficient
evidence to overcome § 43-8-196, he does not request that we change or
rearticulate our interpretation of "if [one] fails" from meaning to fail to
present "some credible evidence." Specifically, Harper argues that he
presented credible evidence, but he does not argue that the "credible
evidence" test in our prior caselaw should be changed to a "sufficient
evidence" test in the way the main opinion frames it. Generally, this
Court does not reverse a trial court's judgment on a ground not raised on
appeal. Hart v. Pugh, 878 So. 2d 1150, 1157 (Ala. 2003) ("[W]hen we are
asked to reverse a lower court's ruling, we address only the issues and
arguments the appellant chooses to present.").
The main opinion sub silentio overrules numerous prior decisions
stating the "credible evidence" interpretation of the Code section. Harper
does not ask this Court to overrule caselaw on that ground. As numerous
cases note, we do not overrule prior precedent without such a request.
See, e.g., Eickhoff Corp. v. Warrior Met Coal, LLC, 265 So. 3d 216, 224
(Ala. 2018) (refusing to overrule controlling caselaw with no request to
do so). Harper does ask this Court "to overrule the cases that read 'costs'
to include fees" and makes a compelling argument to do so. Harper's brief
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at 52. However, my readiness to accept this request is tempered by the
fact that this Court recently adhered to the "long-standing line of
precedent construing 'costs[]' ... to include attorney fees" for purposes of
§ 43-8-196. Boykin v. Land, 428 So. 3d 9, 21 (Ala. 2025).
In determining whether there is sufficient evidence, that is,
substantial evidence, to create a question of fact, the trial court generally
does not consider whether the testimony was "credible." In ruling on a
motion for a judgment as a matter of law ("JML"), a court instead views
the evidence in the light most favorable to the nonmovant. Butler v.
Town of Argo, 871 So. 2d 1, 11-12 (Ala. 2003). Whether testimony is
"credible," however, is generally a determination for the jury: "It is settled
law that the credibility of the witnesses is the province of the jury." Floyd
v. Broughton, 664 So. 2d 897, 900 (Ala. 1995). Testimony that the trial
court believes is wholly uncredible might still be substantial evidence for
purposes of denying a motion for a JML because the trial court does not
consider the testimony's credibility. Instead, the jury will later
determine that credibility. Thus, a contestant's evidence consisting of
uncredible testimony may still allow the contestant to survive a motion
for a JML. A contestant's evidence that consists of uncredible testimony,
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though it may be substantial evidence, should not survive the test of §
43-8-196. I would decide whether the trial court was correct in
determining that there was no credible evidence instead of looking to
whether there was substantial evidence. I thus respectfully dissent.
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