Florence Bell died on December 24, 2004. Ms. Bell’s will devised her entire estate to Randy Bell and Dennis Bell to hold in trust for the benefit of Justin Bell. On March 7, 2007 Justin Bell filed his third amended petition for discovery of assets in which he sought to recapture the Estate’s assets that were conveyed by the trustees to various third parties. On April 16, 2008, the Estate’s personal representative filed a motion to review and determine whether a proposed compromise settlement of the discovery of assets proceedings should be approved and requested an evidentiary hearing regarding the settlement offer. The hearing took place the following day, April 17, 2008. During the hearing, the personal representative stated that he believed the defendants’ settlement offer of $325,000 was reasonable. Justin Bell’s attorney objected to the personal representative’s unsworn commentary on the basis that his opinions constituted argument of counsel, not evidence. The trial court stated that the personal representative did not need to be sworn in because, as an attorney, he was an officer of the court. After the personal representative’s commentary, the court asked if he could verify he was telling the truth, and he stated he was. No other evidence was submitted at the hearing.
The Circuit Court of Bates County approved the estate’s compromise settlement of $325,000. Justin Bell appealed.
Reversed and Remanded. When an attorney is serving in the capacity of a testifying witness, he must be sworn in with an oath as a witness and be subject to cross-examination. An unsworn statement by a personal representative is not evidence, and where such a statement is the only basis for a trial court’s judgment, that judgment is not based upon substantial evidence.
The standard for determining whether the trial court may approve a compromise settlement is whether the settlement is in the best interest of the estate and is fair and reasonable. A trial court’s determination must be based on substantial evidence. To constitute testimonial evidence, a witness’s statements must be “sworn testimony.” For statements to qualify as “sworn testimony,” a witness must be sworn in before he gives any testimony, and the oath taken must be sufficient to show a quickening of the conscience. Taking an oath after making statements does not qualify those statements as “sworn testimony.” Likewise, a simple statement that one will tell the truth is, by itself, insufficient to show a quickening of the conscience. Additionally, just because the witness testifying is an attorney, or “officer of the court,” does not afford him special privileges when he actively participates as a testimonial witness. A witness attorney’s statements must still meet the “sworn testimony” requirements to constitute testimonial evidence. Thus, where statements amount to unsworn testimony, they cannot comprise a proper basis for a trial court’s decision because they are not evidence.