Brown v. Fluharty

• Decision Date: 12 September 2013
• Docket Number: No. 12–0365.,12–0365.
• Citation: 231 W.Va. 613,748 S.E.2d 809
• Parties: Douglas BROWN, Marion Robinson, Mason County Farm Museum, Mason County Board of Education, Henderson Church of Christ, Bob Rimmey, Heather Hutchinson, and Kayla Nave, Petitioners v. Robert D. FLUHARTY, in his fiduciary capacity as Executor of the Estate of Bright McCausland, Respondent.
• Court: West Virginia Supreme Court

231 W.Va. 613

748 S.E.2d 809

Douglas BROWN, Marion Robinson, Mason County Farm Museum, Mason County Board of Education, Henderson Church of Christ, Bob Rimmey, Heather Hutchinson, and Kayla Nave, Petitioners

v.Robert D. FLUHARTY, in his fiduciary capacity as Executor of the Estate of Bright McCausland, Respondent.

No. 12–0365.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 4, 2013.

Decided Sept. 12, 2013.

Syllabus by the Court

1. “Appellate review of a circuit court's order granting a motion for judgment on the pleadings is de novo.” Syl. Pt. 1, Copley v. Mingo Cnty. Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995).

2. “ ‘Testamentary intent and a written instrument, executed in the manner provided by [W. Va.Code § 41–1–3], existing concurrently, are essential to the creation of a valid will.’ Syl. pt. 1, Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948).” Syl. Pt. 3, Stevens v. Casdorph, 203 W.Va. 450, 508 S.E.2d 610 (1998).

3. “If one having testamentary capacity is unable from any physical cause to write his name to his will, another person may steady his hand and aid him in so doing; and it is not necessary to prove an express request from the testator for such assistance; it may be inferred from the circumstances of the case.” Syl. Pt. 17, McMechen v. McMechen, 17 W.Va. 683 (1881).

John F. Allevato, Esq., David R. Croft, Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, R. Michael Shaw, Sr. Shaw & Tatterson, L.C., Point Pleasant, West Virginia, for the Petitioners.

Daniel J. Konrad, Esq., Audy M. Perry, Jr, Esq., Anna M. Price, Esq., Huddleston Bolen, LLP., Huntington, West Virginia, for the Respondent.

PER CURIAM.

In the instant case, this Court is called upon to determine whether a testator's failure to sign his non-holographic will, or to request that it be signed on his behalf, renders the will void under the circumstances of this case or, indeed, under any circumstances. The circuit court concluded that the testator's will was void as a matter of law and granted judgment on the pleadings for the will's opponent. Upon careful review of the parties' briefs and arguments, the appendix record, and the applicable law, we affirm the judgment of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The testator, Bright McCausland, was a resident of Mason County, West Virginia. On October 28, 2009, he executed a “Last Will and Testament” naming Robert D. Fluharty, defendant, respondent herein, as executor of his estate. The will (hereinafter “the original will”) provided that after payment of debts, funeral expenses, taxes, and administration expenses, the executor, “in his absolute discretion,” was to distribute Mr. McCausland's tangible personal property among his friends, neighbors, and the West Virginia State Museum. Mr. McCausland bequeathed the residue of the estate to the Bright McCausland Trust, established November 13, 2002, to “be administered and disposed of in accordance with the terms of said instrument of trust as such exists at the time of my death.”

Approximately six months later, Mr. McCausland's health was failing; he was physically incapacitated and living in a nursing care facility. It is alleged by the petitioners that on April 10th and 11th, 2010, Mr. McCausland dictated the terms of a new will (hereinafter “the second will”) to his nephew, Douglas Brown, one of the petitioners.¹ Mr. Brown reduced the dictation to a typewritten document entitled “Bright McCausland–Last Will.” Mr. McCausland did not sign or mark the typewritten will, and no one signed or marked it on his behalf. However, two individuals who were Mr. McCausland's health care providers in the nursing home signed the will and subsequently attempted to attest the document by signing affidavits averring that they “did witness [Mr. McCausland] stating that the new last will and testament contained his final desires.” ²

Bright McCausland died on April 22, 2010. On May 20, 2010, the original will was probated and recorded in Will Book 37, Page 111 in Mason County, West Virginia. Almost fifteen months later, on July 14, 2011, the petitioners filed a civil action seeking to have the original will revoked and the second will admitted to probate, on the ground that the second will expressly “revoke[d] all former wills previously made by me.” Both the original will and the second will were appended as exhibits to the complaint, together with the affidavits of Ms. Robinson and Ms. Greer. The respondent filed an answer and a motion for judgment on the pleadings, on the sole ground that

[w]hile there appears to be two signatures of persons other than the Decedent, both signing affidavits purporting to “witness” the execution of this document, but there is no signature of the Decedent. No signature, initials, handwriting of the Decedent, or evidence of someone signing on behalf of the Decedent appears anywhere on the document. Without this signature, the document does not meet the elements of a valid will in West Virginia.

On February 9, 2012, following briefing and a hearing, the circuit court entered an order granting the respondent's motion.³ The court concluded “that the Decedent did not sign his name anywhere on the second document, and therefore, there being no signature, under W. Va.Code § 41–1–3, the second document is not a valid will.” This appeal followed.

II. STANDARD OF REVIEW

“Appellate review of a circuit court's order granting a motion for judgment on the pleadings is de novo.” Syl. Pt. 1, Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995).

Inasmuch as this case was decided on a motion for judgment on the pleadings, West Virginia Rule of Civil Procedure 12(c), we construe the complaint in a light most favorable to the plaintiffs, petitioners herein, and take the factual allegations contained in the complaint as true. Cf. Riffle v. C.J. Hughes Const. Co., 226 W.Va. 581, 586–87, 703 S.E.2d 552, 557–58 (2010); Fucillo v. Kerner ex rel. J.B., 231 W.Va. 195, 199, 744 S.E.2d 305, 309 (2013).

III. DISCUSSION

In West Virginia, the procedural requirements for execution of a valid will are set forth in West Virginia Code § 41–1–3 (2010), which provides:

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.

The statute was “enacted to protect and sanctify the execution of a will to prevent substitution or fraud[.]” Stevens v. Casdorph, 203 W.Va. 450, 455, 508 S.E.2d 610, 615 (1998) (Workman, J., dissenting).

Our precedents make clear that both “ ‘[t]estamentary intent and a written instrument, executed in the manner provided by [W. Va.Code § 41–1–3], existing concurrently, are essential to the creation of a valid will.’ Syl. pt. 1, Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948).” Syl. Pt. 3, Stevens, 203 W.Va. at 451, 508 S.E.2d at 611. For more than one hundred years, however, we have held that an otherwise valid will that substantially complies with the statutory requirements may be upheld where justice so requires. For example, in syllabus point 17 of McMechen v. McMechen, 17 W.Va. 683 (1881), this Court held that

[i]f one having testamentary capacity is unable from any physical cause to write his name to his will, another person may steady his hand and aid him in so doing; and it is not necessary to prove an express request from the testator for such assistance; it may be inferred from the circumstances of the case.

We further explained that “the only requirement of the statute is that the writing be signed by the testator ‘in such manner as to make it manifest that the name is intended as a signature.’ ” In re Estate of Briggs, 148 W.Va. 294, 299, 134 S.E.2d 737, 741 (1964) (internal citations omitted). Thus,

‘A testator may sign his name by writing it out in full, or by abbreviating it, or by writing his initials only, and the first name of the testator may be by itself a sufficient signature to a will.’ 94 C.J.S., Wills, Section 171, pages 971–972. A mark intended as a signature may be sufficient. Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480.

148 W.Va. at 299, 134 S.E.2d at 741.

In Clark v. Studenwalt, 187 W.Va. 368, 419 S.E.2d 308 (1992), where the testator's holographic will contained his name in the exordium of the document, ⁴ although not at the bottom of it, we noted that “[ West Virginia Code § 41–1–3] does not address where the testator's signature must appear on the document.” 187 W.Va. at 370, 419 S.E.2d at 310. Because the testator in Clark had secured two attesting witnesses, a formality not required to execute a holographic will, we found it to be “clear that Walter Clark, as appellants contend, viewed his placement of his signature in the exordium as sufficient to constitute an indication that he intended the document as his last will and testament.” 187 W.Va. at 371, 419 S.E.2d at 311;see also Charleston Nat. Bank v. Thru the Bible Radio Network, 203 W.Va. 345, 349 n. 7, 507 S.E.2d 708, 712 n. 7 (1998).

Our precedents, read together, demonstrate that although this Court has adopted a rule of substantial compliance with respect to the statutory requirement that a will be “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 for execution of a will[,]” we have never upheld the validity of a will that contains no signature of any kind.⁵See Clark, 187 W.Va. at 370, 419 S.E.2d at 310 (“The importance of a signature...