Tuesday, March 12, 2013

Stevens v. Casdorph case brief

Stevens v. Casdorph case brief summary
203 W. Va. 450

SYNOPSIS: Plaintiff nieces appealed a decision from the Circuit Court of Kanawha County (West Virginia) that granted a motion by defendant executors for summary judgment in the nieces' action challenging a will. The nieces claimed that the decedent's will was not executed according to the requirements set forth in W.Va. Code § 41-1-3 (1995).

OVERVIEW: Two months prior to his death, the 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, the nieces asserted that the execution of the will did not comply with W.Va. Code § 41-1-3 (1995).

In reversing the circuit court's grant of the executors' motion for summary judgment, the court noted that the law favored testacy over intestacy.

However, the court found that none of the parties signed or acknowledged their signatures in the presence of each other. The situation met neither the narrow case law exception to the rule that actual execution of a written will had also comply with the dictates of W.Va. Code § 41-1-3, nor the specific provisions of W.Va. Code § 41-1-3.

No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary.

OUTCOME: The court reversed the circuit court's grant of the executors' motion for summary judgment in the nieces' action challenging the will.

Stevens v. Casdorph (W.V. 1998) [26 CB 205]: Testator executed will in bank; bank manager then separately went and had two witnesses (who didn’t witness the execution) sign.  Rule: The formalities statute specifically required signing the will in the presence of both witnesses and their witnessing in his presence, so the execution fails to satisfy that requirement.
i.    Dissent: Majority slavishly worships form over substance and ignores the spirit of the testamentary law through an illiberal and inflexible construction
ii.   Dissent wants to adopt line of sight presence test, which would validate this will b/c even though testator didn’t see the witnesses, he was in their line of sight

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