¶2I agree that the proponents were entitled to a judgment as a matter of law. I write to note the following: The contestants presented no evidence indicating that the decedent lacked testamentary capacity on January 15, 1997, when she signed her will. Although several of the contestants' witnesses testified that the decedent slept more than usual after receiving her cancer diagnosis, they presented no evidence to indicate that she was taking any pain medication at the time she signed her will, a mere 12 days after she was diagnosed with cancer, or to indicate that if she had been taking the pain medication it might have interfered with her mental capacity. *1137
¶3The decedent's neighbor, who happened to be a nurse, testified for the contestants that the pain medication "makes you drowsy and changes your mood, and it clouds you mentally." However, she had no specific knowledge of what medications had been prescribed to the decedent, and she had not been around the decedent for weeks before she signed the will. Another witness, who was present when the decedent signed her will, testified that in her opinion the decedent was at that time of sound mind.
¶4As to the contestants' allegations of undue influence, their testimony at best indicates that the decedent's sister and niece spent a lot of time with her from the time she was diagnosed with cancer in January 1997 until she died in May 1998. The record contains no evidence indicating undue influence on the decedent between the time she made her 1994 will and the time she made her 1997 will. More important, it contains no evidence indicating that the decedent did not act of her own volition or that she devised her property in a manner inconsistent with her free will.
¶6I am not prepared to hold that an affidavit given in an attempt to make a will self-proving need not bear the notarial seal, and believe further that this court need not reach this issue.
¶7Unlike the documents at issue in the cases relied upon by the majority (McCloud v. State, 715 So.2d 230 (Ala.Civ.App. 1998) (an affidavit submitted in support of a motion for summary judgment); and Harrison v.Simons, 55 Ala. 510 (1876) (a certificate attached to a deed)), the affidavit in a self-proving will is subject to a statutory requirement that it be "evidenced by [a] certificate, under official seal." §43-8-132, Ala. Code 1975. (Emphasis added.) As this court has held, "[t]he words in a statute must be given their plain, ordinary, and commonly understood meanings." Edmonds v. Bessemer Bd. of Educ.,736 So.2d 646, 648 (Ala.Civ.App. 1999). "Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect." Rucker v. Morgan, 702 So.2d 452, 454 (Ala.Civ.App. 1996) (reaffirming that a will must be executed according to statutorily prescribed formalities; quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala. 1985)), rev'd on other grounds, 702 So.2d 456 (Ala. 1997).
¶8In addition, Alabama's self-proving will statute is an innovation on the common law. That is, § 43-8-132 provides an alternative to the general mode of proving a will, as set out in § 43-8-167, Ala. Code 1975,1 which is nothing more than a legislative declaration of the common law. See Whitt v. Forbes, 258 Ala. 580, 64 So.2d 77 (1953), andWoodruff v. Hundley, 127 Ala. 640, 29 So. 98 (1900); see also commentary to § 43-8-132, Ala. Code 1975 (stating that "it is fair to conclude that Alabama did not have prior to this act the self-proving mechanism which is provided by this *1138 section"). Because § 43-8-132 is an innovation on the common law, it should be strictly construed. See Pappasv. City of Eufaula, 282 Ala. 242, 244, 210 So.2d 802, 804 (1968). Therefore, because of the absence of a notary's official seal from the face of the will offered by the proponents, I disagree with the majority's conclusion that that will was self-proving under § 43-8-132.
¶9Nonetheless, I concur in the result reached by the majority. Although the decedent's will does not meet the requirements for a self-proving will under § 43-8-132, I conclude that the issue of the validity of the will's execution should not have been submitted to the jury in light of other evidence before the trial court.
¶10The proponent of a contested will has the burden of making a prima facie showing that the will was validly executed by offering testimony evidencing the execution of the will by the testator and the attestation of the will by the witnesses, as prescribed by Alabama law. Burns v.Marshall, 767 So.2d 347, 351 (Ala. 2000) (citing Anderton v. Latham,342 So.2d 779, 780 (Ala. 1977)). Section 43-8-131, Ala. Code 1975, which provides the formalities for the execution of a will, requires:
¶11 "Except as provided within section 43-8-135, every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgement of the signature or of the will."
¶12A contested will must be proved by both attesting witnesses; if a witness is unavailable, and the proponent accounts for the absence of that witness, secondary evidence of the witness's attestation may be admitted. Ferrell v. Minnifield, 275 Ala. 388, 391, 155 So.2d 345, 347 (1963) (citing Barnett v. Freeman, 197 Ala. 142, 72 So. 395 (1916)); seealsoCulver v. King, 362 So.2d 221, 222 (Ala. 1978) (citing Ferrell,supra).
¶13The record indicates the following facts regarding the execution of the decedent's 1997 will: The attorney who drafted the will testified that he had observed the signing of the document by the decedent and two witnesses. The attorney further testified that the decedent had signed the will in the presence of the witnesses. At the trial of this case, the proponents explained that they had been unable to locate one of the witnesses to the decedent's will.2 However, the other witness testified that she had signed the 1997 will, as a witness, and that she recognized the signature above hers on the will as that of the missing witness.
¶14Based on the foregoing, I conclude that the proponents presented a prima facie case proving that the will was validly executed. It then became the duty of the contestants to offer evidence showing that the will was not validly executed or that the will should not be probated for some other reason. See Burns, *1139767 So.2d at 351; see also Anderton, 342 So.2d at 780. Because the record indicates that the contestants proffered no evidence refuting the proponents' prima facie showing, I agree with the majority that the trial court erred in submitting the issue of the validity of the will's execution to the jury.
¶15THOMPSON, J., concurs.
¶17 "Wills offered for probate . . . must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient."
¶18Although this Code section did not take effect until January 1, 1983 (see § 43-8-8(a), Ala. Code 1975), this section mirrors preexisting law. See § 43-1-44, Ala. Code 1975 (repealed); and Ala. Code 1940, tit. 61, § 39.