Wills, Trusts, and Estates, Pages 149–152

Stevens v. Casdorph

Supreme Court of Appeals of West Virginia, 1998


The defendants took the wheelchair-bound Miller to the bank so he could execute his will. Miller asked the bank's notary, Pauley, to witness the execution of his will. He signed it in her presence and she then took it and had two other employees sign it as witnesses, though they did not see Miller sign it themselves and Miller did not follow Pauley.

Miller then died. Defendant Paul Casdorph, as executor, left most of Miller's estate to the defendants, as Miller's will said to. Plaintiffs, Miller's nieces, then filed to set the will aside for its improper execution.

Procedural History:

Circuit court denied plaintiffs' motion for summary judgment and granted defendants'.


Was Miller's execution of his will valid?

Plaintiff's Argument:

West Virginia requires a will to be signed in the presence of the two witnesses to be valid. Since the witnesses did not see Miller sign it, the will is invalid.

Defendant's Argument:

Miller substantially complied with the statutory requirements. Everyone knew what was occurring, even if they did not see themselves. There is no evidence of fraud.


The law does favor testacy over intestacy, but the law clearly says these requirements are mandatory. It is established that mere intent to execute a will is insufficient.

Defendants ask us to make an exception to this rule, but this court already made an exception to allow one of the witnesses to sign before the testator did as long as both still witnessed the testator sign it and acknowledged their signatures then. Here however, none of the signatories signed or acknowledged their signatures.


No, wills must be signed, or at least acknowledged, in the witnesses and testator's presence. Reversed.

Dissenting Opinion:

Workman: The majority's holding is following the letter of the law over the substance and spirit of the law. There is no claim of fraud here, nor that Miller did not fully intend to convey his property as specified in his will.

The case that established their cited exception warned precisely against this inflexible construction. They took the easy way out of this case instead of applying common sense and enforcing justice.