## Facts

- Edward Reese McGurrin executed an earlier will leaving his estate to Charles O. Scoggin.
- About four months before his 1983 death, while hospitalized, McGurrin dictated a new will to his secretary, Cindy Rood, who typed it (the “Rood will”).
- McGurrin signed the typed Rood will alone in his hospital room, with no witnesses present.
- McGurrin asked Rood to take the document to her home so that Rood’s mother and sister could sign as witnesses.
- Rood’s mother and sister signed as “witnesses,” but neither saw McGurrin sign nor received an in-person acknowledgment from him of his signature or of the document as his will when they signed.
- After the signatures were obtained, Rood returned the document to McGurrin at the hospital; McGurrin later spoke by telephone with the two witnesses and thanked them for “witnessing” his will.
- The typed will named Avery Floyd as executor and contained dispositions that included a one-fifth share to Floyd and a remainder to named beneficiaries; a handwritten interlineation affecting Floyd’s share was disputed, including testimony that it was not present when one witness signed.
- After McGurrin’s death, the Rood will and the earlier Scoggin will were offered for probate; McGurrin’s heirs-at-law were his nieces, Heidi and Flicka McGurrin.

## Issues

1. Whether a non-holographic will satisfies Idaho Code § 15-2-502 when the testator signs outside the witnesses’ presence, the witnesses sign later in the testator’s absence without contemporaneous in-person acknowledgment, and the only later contact is a telephone call thanking them for “witnessing” the will.
2. If the later will is invalid for defective execution, whether the prior will controls the estate’s disposition.

## Decision

- The Court of Appeals affirmed the district court’s order striking the Rood will.
- The court held the Rood will was not executed in compliance with Idaho Code § 15-2-502 because the witnesses did not “witness” either the signing or a legally sufficient acknowledgment.
- The testator’s post-execution telephone call did not cure the absence of contemporaneous, in-person witnessing or acknowledgment.
- With the Rood will invalid, the earlier will remained the operative testamentary instrument.

## Legal Principles

- Under Idaho Code § 15-2-502, each attesting witness must witness either (a) the testator’s signing, or (b) the testator’s acknowledgment of the signature or of the will.
- “Witnessed” requires the witnesses’ presence for a contemporaneous, direct act of signing or acknowledgment that links the witnesses’ attestation to the testator’s execution of that instrument.
- A remote, after-the-fact communication (such as a telephone call) expressing gratitude for “witnessing” does not constitute the required acknowledgment when the witnesses were not present and did not receive an in-person acknowledgment at the time they signed.
- When a later purported will fails statutory execution requirements, it is denied probate and does not revoke or replace a prior valid will.

## Conclusion

The court invalidated a hospital-executed will because the attesting witnesses neither observed the testator sign nor received a contemporaneous in-person acknowledgment, and a later telephone call could not satisfy Idaho’s statutory witnessing requirement; the prior valid will therefore governed the estate.


In re Estate of McGurrin, 743 P.2d 994 (Idaho Ct. App. 1987)