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Stevens v. Casdorph - 203 W. Va. 450, 508 S.E.2d 610 (1998)

Rule:

The law favors testacy over intestacy. Testamentary intent and a written instrument, executed in the manner provided by W.Va. Code § 41-1-3, existing concurrently, are essential to the creation of a valid will. Mere intent by a testator to execute a written will is insufficient. The actual execution of a written will must also comply with the dictates of W.Va. Code § 41-1-3. Where a testator acknowledges a will and his signature thereto in the presence of two competent witnesses, one of whom then subscribes his name, the other or first witness, having already subscribed the will in the presence of the testator but out of the presence of the second witness, may acknowledge his signature in the presence of the testator and the second witness, and such acknowledgment, if there be no indicia of fraud or misunderstanding in the proceeding, will be deemed a signing by the first witness within the requirement of W.Va. Code § 41-1-3, that the witnesses must subscribe their names in the presence of the testator and of each other.

Facts:

Two months prior to his death, defendant executors took the decedent to a bank to execute his will. A bank employee and public notary took the will to two other bank employees for the purpose of having each of them sign the will as witnesses. The decedent did not accompany the notary to the employees' work area, and the employees testified during their depositions that they did not actually see the decedent place his signature on the will. In their challenge to the will, plaintiff nieces asserted that the execution of the will did not comply with W.Va. Code § 41-1-3 (1995). Decedent died on July 28, 1996 and named Paul Casdorph his executor and left the bulk of his estate to the Casdorphs. The evidence at the trial court found that everyone in the bank knew why decedent was there. Furthermore, the court did not find any evidence of fraud, coercion, or undue influence. Decedent’s nieces who would share in his intestate estate, filed an action to set aside the will.

Issue:

Is a will is validly executed under state code where the witnesses did not see the testator sign the will or acknowledge the will, nor did the testator see the witnesses sign the will or acknowledge their signatures, even though the execution took place in one location and the two witnesses were informed that the testator was attempting to execute his will?

Answer:

No.

Conclusion:

The court reversed the trial court's grant of summary judgment in favor of the executors. A will is not valid if the testator did not sign in it or acknowledge his signature in the presence of two witnesses, who are together, and sign their name or acknowledge their signature on the will. The court acknowledged that the law favored testacy over intestacy, but that it had also held that a valid will must have testamentary intent and execution in a manner provided by state code, concurrently.

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