STEVENS V. CASDORPH

503 S.E.2d 610 (1993)



Procedure:Testator's nieces filed action to set aside will that left the bulk of testator's estate to his nephew. The Circuit Court, Kanawha County, Tod J. Kaufman, J., entered summary judgment for nephew. Nieces appealed.

Facts: Def. took Miller to the Bank so that he could execute his will Miller asked Pauley, a bank employee and public notary, to witness the execution of his will Miller signed the will, and Ms Pauley took the will to two other bank employees, Judith Waldron and Reba McGinn, for the purpose of having each of them sign the will as witnesses Both signed the will Both testified during their depositions that they did not actually see Miller place his signature on the will It is undisputed that Miller did not accompany Pauley Miller died and the will left the bulk of his estate to D Ps filed an action to set aside the will Miller's will was not executed according to the requirements set forth in W Va Code.

Issue:Is a will validly executed when neither of two attesting witnesses actually saw the decedent sign the will?

Holding: According to the Code in West Virginia section 41-1-3, a will must be signed by the testator in the presence of two witnesses and the witnesses must sign the will in the presence of the testator and each other. This condition was not satisfied in the instant case. Hence, the execution of the will was not proper. Justice Workman dissented stating that the judgment was against the intent and spirit of our whole body of law relating to the making of wills.

Rule: A decedents signature must be in the presence of two competent witnesses, both of whom acknowledge the decedent's signature in the presence of each other.

Analysis:The majority defined presence as "actually witnessing the signature". The dissent states mat the legal concept of presence in wrong context encompasses far more man simply watching the signing of the will, which is the technical, narrow interpretation of the word. The Court strongly disagrees as it is far better to require the parties to do what is right and get a specific result man to deal with courts making up the rules as they go along. The Wade exception existed but if the court allowed no one to actually witness, men it would be contravention of the plain meaning of the word "presence." That is a really simple thing to do. Of course, what should be done with wills jis mat the courts should witness the signatures for a fee and also hear the disposition of the property in open court to make sure the will is being interpreted properly before the testator dies.