Citation. Stevens v. Casdorph, 203 W. Va. 450, 508 S.E.2d 610, 1998)
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Brief Fact Summary.
Homer Haskell executed a will at bank, but not in the presence of two witnesses who did not witness him signing or acknowledging his will. The trial court admitted the will to probate finding that the will substantially complied with the statute while the Circuit Court overruled their decision.
Synopsis of Rule of Law.
A will is not valid where the two subscribing witnesses do not see the testator sign the will or acknowledge his signature, nor does the testator see the witnesses sign their names or acknowledge their signatures on the will.
Facts.
The Casdorphs took Homer Haskell to Shawnee Bank in Dunbar, East Virgina to execute his will. Haskell asked Debra Pauley a bank employee and public notary to witness the execution. First, Haskell signed the will. Then Pauley took the will to two other bank employees, Ms. Waldron and Ms. Ginn to sign as witnesses. Both ladies testified in their depositions they did not see Haskell sign and Haskell did not go to with Pauley to the ladies’ work areas. Haskell died on July 28, 1996. Haskell 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 Haskell was there. Furthermore, the court did not find any evidence of fraud, coercion, or undue influence. The Stevens’, Haskell’s nieces who would share in his intestate estate, filed an action to set aside the will.
Issue.
Whether a will is valid where the witnesses do not see the testator sign the will or acknowledge the will, nor does the testator see the witnesses sign the will or acknowledge their signature, even though the execution takes place a one location and the two witnesses are informed that the testator is attempting to execute his will.
Held.
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 law favors intestacy over intestacy but this Court has held that a valid will must have testamentary intent and execution in a manner provided by the code, concurrently.
Dissent.
The majority elevates form over substance. Courts should adhere to the underlying purpose of the statue only to prevent substitution or fraud. Here, strict adherence to formality defeats the purpose of the statue. The Court in Wade held that a narrow rigid construction of the statute should not be allowed to stand in the way of justice.
Discussion.
The Court will adhere to statute when deciding whether to probate a will. Though the Court did not find any evidence of fraud or undue influence, the evidence did not necessarily rule out the possibility of fraud where the testator was in a wheel chair and escorted to the bank by the beneficiaries in his will.
