## Facts

- Kay Whitacre died leaving five adult children.
- Kay executed a will naming her daughter, Victoria Hobson, as the sole beneficiary and naming her son, Michael A. Crowe, as executor.
- The will omitted three of Kay’s children—Shawn Whitacre, Angie, and Nick—who later challenged the will’s execution.
- Kay was confined to an upstairs bedroom when the will was signed.
- Kay signed the will upstairs in her bedroom.
- A one-way video monitor transmitted Kay’s image and sound from the upstairs bedroom to a living room downstairs, allowing those downstairs to see and hear Kay.
- The monitor did not transmit any sound or video from downstairs to Kay upstairs.
- After Kay signed, Michael carried the will downstairs to the living room.
- Two attesting witnesses, Sara White and Joseph Reich, signed the will downstairs; Victoria was also present downstairs during the witnessing.
- Kay’s bedroom door was open, creating a possibility that Kay could hear some voices or activity from downstairs, but there was no evidence that Kay could see the witnesses or that she knew they were signing at that time.
- After the will was admitted to probate, Shawn, Angie, and Nick filed a will contest asserting the execution did not meet Ohio Rev. Code § 2107.03, and they moved for summary judgment.
- The probate court granted summary judgment to the contestants, ruled the will was not properly executed because the witnesses did not sign in Kay’s conscious presence, and revoked the prior order admitting the will to probate.
- Victoria appealed the summary judgment and revocation order.

## Issues

1. Whether the witnesses “attest[ed] and subscribe[d]” the will in the testator’s “conscious presence” under Ohio Rev. Code § 2107.03 when the testator remained upstairs while the witnesses signed downstairs, with only a one-way monitor and an open bedroom door.
2. Whether, on this record, any genuine issue of material fact existed that barred summary judgment for the will contestants.

## Decision

- The Court of Appeals reviewed the grant of summary judgment de novo, applying the Civ.R. 56 standard and viewing the evidence in the light most favorable to the nonmovants.
- The court affirmed the probate court’s summary judgment for Shawn, Angie, and Nick.
- The court held the will was not executed in compliance with R.C. 2107.03 because the witnesses did not sign in Kay Whitacre’s conscious presence.
- The court concluded that speculation that Kay might have heard some downstairs activity was not enough to show she perceived and understood the act of witnessing when it occurred.
- The court affirmed the revocation of the order admitting the will to probate.

## Legal Principles

- Under R.C. 2107.03, a valid will must be signed by the testator and attested and subscribed by two competent witnesses in the testator’s conscious presence.
- “Conscious presence” requires that the witnessing occur within the testator’s sensory range so the testator can be aware of the witnesses’ act of signing.
- Presence is not satisfied where the testator’s awareness would depend on electronic transmission rather than the testator’s direct ability to see or hear the witnesses sign.
- A mere possibility that the testator could hear voices or movement, without evidence the testator understood the witnesses were signing the will at that time, does not create a triable fact question on conscious presence.
- On summary judgment, once the moving party points to record evidence showing a defect in statutory execution formalities, the opposing party must respond with specific facts showing a genuine issue for trial.

## Conclusion

Because the undisputed record showed that Kay Whitacre stayed upstairs while the attesting witnesses signed downstairs, and the one-way monitor and open door did not establish that Kay directly perceived and understood the witnessing at the time it happened, the witnesses did not sign in her conscious presence as required by R.C. 2107.03; the court therefore affirmed summary judgment invalidating the will and revoking its probate admission.


Whitacre v. Crowe, 972 N.E.2d 659 (2012)