The plaintiffs below and appellants herein Janet Sue Lanham Stevens, Peggy Lanham Salisbury, Betty Jean Bayes, and Patricia Miller Moyers (hereinafter collectively referred to as the "Stevenses") appeal a summary judgment ruling for the defendants by the Circuit Court of Kanawha County. The Stevenses instituted this action against Patricia Eileen Casdorph and Paul Douglas Casdorph, individually and as executor of the estate of Homer Haskell Miller, defendants below and appellees herein (hereinafter referred to as "Casdorphs"), for the purpose of challenging the will of Homer Haskell Miller. The circuit court granted the Casdorphs' cross-motion for summary judgment. On appeal, this Court is asked to reverse the trial court's ruling. Following a review of the parties' arguments, the record, and the pertinent authorities, we reverse the decision of the Circuit Court of Kanawha County.
On May 28, 1996, the Casdorphs took Mr. Homer Haskell Miller to Shawnee Bank in Dunbar, West Virginia, so that he could execute his will.
Mr. Miller died on July 28, 1996. The last will and testament of Mr. Miller, which named Mr. Paul Casdorph
STANDARD OF REVIEW
This Court has held that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In syllabus point 5 of Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971), we indicated that "[a] motion for a summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the case involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law." In syllabus point 9 of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), we held that:
The Stevenses' contention is simple. They argue that all evidence indicates that Mr. Miller's will was not properly executed. Therefore, the will should be voided. The procedural requirements at issue are contained in W.Va.Code § 41-1-3 (1997). The statute reads:
The relevant requirements of the above statute calls for a testator to sign his/her will or acknowledge such will in the presence of at least two witnesses at the same time, and such witnesses must sign the will in the presence of the testator and each other. In the instant proceeding the Stevenses assert, and the evidence supports, that Ms. McGinn and Ms. Waldron did not actually witness Mr. Miller signing his will. Mr. Miller made no acknowledgment of his signature on the will to either Ms. McGinn or Ms. Waldron. Likewise, Mr. Miller did not observe Ms. McGinn and Ms. Waldron sign his will as witnesses. Additionally, neither Ms. McGinn nor Ms. Waldron acknowledged
Our analysis begins by noting that "[t]he law favors testacy over intestacy." Syl. pt. 8, In re Teubert's Estate, 171 W.Va. 226, 298 S.E.2d 456 (1982). However, we clearly held in syllabus point 1 of Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948), that "[t]estamentary 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." Black establishes that 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. The Casdorphs seek to have this Court establish an exception to the technical requirements of the statute. In Wade v. Wade, 119 W.Va. 596, 195 S.E. 339 (1938), this Court permitted a narrow exception to the stringent requirements of the W.Va.Code § 41-1-3. This narrow exception is embodied in syllabus point 1 of Wade:
See Brammer v. Taylor, 175 W.Va. 728, 730 n. 1, 338 S.E.2d 207, 215 n. 1 (1985), ("[T]he witnesses' acknowledgment of their signatures... in the presence of the testator [and in the presence of each other] is tantamount to and will be deemed a `signing' or `subscribing' in the presence of those persons").
Wade stands for the proposition that if a witness acknowledges his/her signature on a will in the physical presence of the other subscribing witness and the testator, then the will is properly witnessed within the terms of W.Va.Code § 41-1-3. In this case, none of the parties signed or acknowledged their signatures in the presence of each other. This case meets neither the narrow exception of Wade nor the specific provisions of W.Va. Code § 41-1-3.
In view of the foregoing, we grant the relief sought in this appeal and reverse the circuit court's order granting the Casdorphs' cross-motion for summary judgment.
WORKMAN, Justice, dissenting:
The majority once more takes a very technocratic approach to the law, slavishly worshiping form over substance. In so doing, they not only create a harsh and inequitable result wholly contrary to the indisputable intent of Mr. Homer Haskell Miller, but also a rule of law that is against the spirit and intent of our whole body of law relating to the making of wills.
There is absolutely no claim of incapacity or fraud or undue influence, nor any allegation by any party that Mr. Miller did not consciously, intentionally, and with full legal capacity convey his property as specified in his will. The challenge to the will is based
In Wade v. Wade, 119 W.Va. 596, 195 S.E. 339 (1938), we addressed the validity of a will challenged for such technicalities
The majority's conclusion is precisely what was envisioned and forewarned in 1938 by the drafters of the Wade opinion: illiberal and inflexible construction, giving preeminence to the letter of the law and ignoring the spirit of the entire body of testamentary law, resulting in the thwarting of Mr. Miller's unequivocal wishes. In In re Estate of Shaff, 125 Or. 288, 266 P. 630 (1928), the court encountered an argument that the attesting witness had not signed the will in the presence of the testator. The evidence demonstrated that the witnesses had signed the document at the request of the testator, and the court reasoned:
Id. at 298, 266 P. 630.
We also specified, in syllabus point two of Wade, that "[w]hether witnesses to a will have subscribed the same in the presence of the testator and of each other, as required by statute, is a question of fact to be determined in each case from the circumstances thereof." Summary judgment is inappropriate where there is a dispute regarding the conclusions to be drawn from evidentiary facts. Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336. Thus, the majority could have legitimately concluded that summary judgment was inappropriate and that the issue of compliance with the statute was a question of fact to be determined by the jury. I could have accepted such reasoning far more readily than that employed by the majority in its swift eradication of Mr. Miller's legal right to convey his estate in the manner of his own conscious choosing.
The majority strains the logical definition of "in the presence" as used in the operative statute. The legal concept of "presence" in this context encompasses far more than simply watching the signing of the will, which is the technical, narrow interpretation of the word apparently relied upon by the majority. Where the attestation of the will by the witnesses occurred within the same room as the testator, there is, at the very minimum, prima facie evidence that the attestation occurred within the "presence" of the testator. See 20 Michie's Jurisprudence, Wills § 34 (1993); Annotation, What constitutes the presence of the testator in the witnessing of his will, 75 A.L.R.2d 318 (1961).
In re Demaris' Estate, 166 Or. 36, 110 P.2d 571 (1941), involved a challenge to a will signed by a very ill gentleman, witnessed in another room by a physician and his wife thirty minutes after the testator signed the will. The court grappled with the question of whether the witnesses had complied with the statutory requirement that the witnesses sign in the presence of the testator. Id. at 39-40, 110 P.2d at 572. The court rejected a strict interpretation of the language of the statute, recognizing that the purpose of requiring the presence of the witnesses was to protect a testator against substitution and fraud. Id. at 62, 110 P.2d at 581. Rather, the court determined that "presence" did not demand that the witnesses sign within the sight of the testator, if other senses would enable the testator to know that the witnesses were near and to understand what the witnesses were doing. Id. The court concluded that "the circumstances repel any thought of fraud and speak cogently of the integrity of the instrument under review. The signatures of all three persons are conceded. The circumstances of the attestation are free from dispute." 166 Or. at 74, 110 P.2d at 586.
To hold the will invalid on a strictly technical flaw would "be to observe the letter of the statute as interpreted strictly, and fail to give heed to the statute's obvious purpose. Thus, the statute would be turned against those for whose protection it had been written." 166 Or. at 76, 110 P.2d at 586.
The majority embraces the line of least resistance. The easy, most convenient answer is to say that the formal, technical requirements have not been met and that the will is therefore invalid. End of inquiry. Yet that result is patently absurd. That manner of statutory application is inconsistent with the underlying purposes of the statute. Where a statute is enacted to protect and sanctify the execution of a will to prevent substitution or fraud, this Court's application of that statute should further such underlying policy, not impede it. When, in our efforts to strictly apply legislative language, we abandon common sense and reason in favor of technicalities, we are the ones committing the injustice.
I am authorized to state that Justice MAYNARD joins in this dissent.