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Whitacre v. Crowe - 2012-Ohio-2981, 972 N.E.2d 659 (Ct. App.)

Rule:

When a testator is not prevented by physical infirmities from seeing and hearing what goes on around him, it is the general, if not universal, rule that his will is attested in his presence if he understands and is conscious of what the witnesses are doing when they write their names, and can, if he is so disposed, readily change his position so that he can see and hear what they do and say. In other words, if he has knowledge of their presence, and can, if he is so disposed, readily see them write their names, the will is attested in his presence, even if he does not see them do it, and could not without some slight physical exertion. It is not necessary that he should actually see the witnesses, for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed. The test, therefore, to determine whether the will of a person who has the use of all his faculties is attested in his presence, is to inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it.

Facts:

Decedent Kay Whitacre had five adult children at the time of her death. Her will was admitted to probate. Her daughter Victoria, was named as the sole beneficiary, while her son, Michael, was named as executor. Kay's three remaining children, Shawn, Angie, and Nick, were not mentioned in the will. Subsequently, plaintiffs, Shawn, Angie, and Nick, filed a complaint to contest the will. They presented evidence that the witnesses were not in Kay’s range of vision when they subscribed and attested the will, and further, that Kay could not hear what they were doing and, therefore, had no understanding that the witnesses were attesting the will. They later moved for summary judgment. While Victoria presented evidence that Kay could hear conversations and movements in the downstairs living room, she presented no evidence regarding the substance of any of those conversations or that the Decedent was aware that the witnesses were subscribing and attesting her will at the time they were doing so. Victoria and Michael responded in opposition, but the trial court granted the plaintiffs' motion for summary judgment, concluded that Kay's will was not executed pursuant to the formalities required in Ohio Rev. Code Ann. § 2107.03, and revoked an earlier order admitting the will to probate. Victoria appealed, raising three interrelated assignments of error for review.

Issue:

Did the trial court err in concluding that Decedent's will was not executed pursuant to the formalities required in Ohio Rev. Code Ann. § 2107.03?

Answer:

No

Conclusion:

The appellate court found that the witnesses were not in Kay’s conscious presence. Therefore, the trial court did not err when it concluded that the will was not executed in compliance with Ohio Rev. Code Ann. § 2107.03, and when it therefore revoked its prior order admitting the will to probate.

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