## Facts

- Homer Haskell Miller, an elderly, wheelchair-bound man, went to a bank to execute a will.
- Miller signed the will in front of a bank employee who acted as a notary.
- The notary then took the document to two other bank employees to sign as attesting witnesses.
- The two witnesses did not see Miller sign the will and Miller did not acknowledge his signature or the will in their presence.
- Miller did not see the witnesses sign, and the witnesses did not acknowledge their signatures to Miller.
- After Miller’s death, the will left most of his estate to Paul Douglas Casdorph and Patricia Eileen Casdorph, with Paul Casdorph named executor.
- Miller’s nieces, who would benefit under intestacy, challenged the will as not executed in compliance with W. Va. Code § 41-1-3.
- The circuit court granted summary judgment upholding the will on a substantial-compliance rationale and the absence of evidence of fraud, coercion, or undue influence.

## Issues

1. Whether a will is valid under W. Va. Code § 41-1-3 when the testator signs before a notary, and two witnesses later sign, but neither the testator nor the witnesses sign or acknowledge in each other’s presence.
2. Whether a court may uphold a will on substantial compliance where the statute’s mutual-presence attestation requirements were not satisfied.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the grant of summary judgment for the will’s proponents.
- The court held the will was not validly executed under W. Va. Code § 41-1-3 because the two subscribing witnesses did not see the testator sign or acknowledge his signature, and the testator did not see the witnesses sign or acknowledge their signatures.
- The court rejected the circuit court’s reliance on substantial compliance and the lack of proven wrongdoing as a basis to excuse statutory formalities.
- The case was remanded for further proceedings consistent with the holding.

## Legal Principles

- A valid will requires both testamentary intent and execution in the manner required by W. Va. Code § 41-1-3; intent alone does not create a valid will.
- Under W. Va. Code § 41-1-3, the testator must sign (or acknowledge the signature) in the presence of at least two competent witnesses, and the witnesses must attest and subscribe in the testator’s presence.
- The statutory presence and attestation requirements function as safeguards against fraud and substitution and are not dispensed with merely because no fraud is shown in a particular record.
- Prior flexibility in signing sequence does not excuse the complete absence of mutual observation or acknowledgment between testator and witnesses.

## Conclusion

The court invalidated the will because the testator and attesting witnesses neither signed nor acknowledged signatures in each other’s presence, and it refused to treat missing statutory execution formalities as harmless where the core presence requirements were not met.


Stevens v. Casdorph, 203 W. Va. 450, 508 S.E.2d 610 (W. Va. 1998)