Stevens v. Casdorph, 508 S.E.2d 610 (W. Va. 1998)


Facts: The Casdorphs (Ds) took Miller to the bank to execute his will. At the bank, Miller asked a notary to witness the execution, which she did. After Miller signed the will, the notary took the will to two other bank employees to witness the signature. Miller was not with her when the witnesses signed the will, they had not seen Miller sign, and they had not seen each other sign. Upon Miller's death, Paul Casdorph, Miller's nephew, was named executor, and the Casdorphs were left the bulk of the estate. The court granted Ds' motion for summary judgment, and Ps appeal.

Issue: For a will to be properly executed, must the testator sign or acknowledge his will in the presence of two witnesses, present at the same time, and must the witnesses sign the will or acknowledge their signatures in the presence of each other and the testator?

Holding: Yes. The Circuit Court, Kanawha County, Tod J. Kaufman, J., entered summary judgment for nephew. Nieces appealed. The Supreme Court of Appeals held that will was not validly executed.

Analysis:Although the law favors testacy over intestacy, the relevant statute requires that the testator sign or acknowledge his will in the presence of two witnesses, present at the same time, and that the witnesses sign the will or acknowledge their signatures in the presence of each other and the testator. Ds contend that there was substantial compliance with the statute because everyone involved with the will knew what was going on. Furthermore, the trial court found that there was no evidence of fraud, coercion, or undue influence. However, mere intent by a testator to execute a will is insufficient. This court has allowed only a narrow exception to the rules of execution. If a witness acknowledges his signature on a will in the physical presence of the other witness and the testator, then the will is properly witnessed. Here, none of the parties signed or acknowledged their signatures in the presence of each other.