West Virginia Record

Wednesday, September 18, 2019

Supreme Court agrees with Kanawha, invalidates woman's purported will

State Supreme Court

By Kyla Asbury | Feb 21, 2019

CHARLESTON — The West Virginia Supreme Court of Appeals agreed with Kanawha Circuit Court that a woman's handwritten will is invalid and ordered her estate to be probated as if she died intestate.

Tracie Wilson appealed the Jan. 24, 2018, order entered in Kanawha Circuit Court that granted summary judgment in favor of Tonya Parker and Tamra Stewart, her sisters, who contested the validity of a handwritten will Wilson produced after their mother, Joyce M. Johnson, died on June 27, 2015.

The will was handwritten and unsigned; Wilson argued that by writing her name in the first sentence of the will, Johnson had effectively signed it.

"This Court is not persuaded that the decedent intended the writing of her name in the first sentence to be her signature," the Feb. 11 decision obtained by The West Virginia Record states. "From the outset, petitioner has claimed that the decedent did not sign the will at the time she wrote it because 'no one was sure' whether she was required to sign it in the presence of a notary in order for it to be valid."

The Supreme Court found that there would have been no reason to wait two days for a notary if the decedent, in writing her name in the testamentary paragraph, did so in such a way as to make it clear that her name was intended as her signature, declaring: "Indeed, the decedent never signed the instrument, and the reason for her failure to do so cannot now be determined. It can rest only on mere speculation; but that there was some reason for (her) failure to complete the writing by affixing [her] signature to it is clear beyond question ... Whatever it was, something caused (her) to hesitate and to stop before its final completion.

"Accordingly, we affirm the January 24, 2018, summary judgment order that removed the instrument from probate, declared it null and void, and ordered that the decedent’s estate be probated under the laws of intestacy," the decision states.

Parker was appointed administrator of her mother's estate and subsequent to the appointment, after which Wilson presented for probate the disputed will, which left everything to her. Parker’s prior appointment was revoked and the will was admitted for probate.

"The will was allegedly notarized by one Carry D. Grishaber (now Clark) on June 26, 2015," the decision states. "Petitioner and both Ms. Harmon and Mr. Sampson (witnesses) executed affidavits in which they stated that they observed the decedent write the subject will while she was in the hospital, that they returned to the hospital two days later at which time they witnessed her signature, and that the decedent signed the purported will in front of Ms. Grishaber."

On Aug. 26, 2015, Parker and Stewart filed a complaint in Kanawha Circuit Court against Wilson alleging the will was a forgery, and that it failed to satisfy the requirements of a will.

Parker and Stewart attached a report of a handwriting expert, Vickie L. Willard, who found that the person who signed the document was not the same as the person who wrote it.

During discovery, Grishaber testified she did not notarize the will even though her signature and notary stamp appeared on the document.

A summary judgment hearing was conducted on Jan. 8, 2018 and an order was entered on Jan. 24, 2018, finding that the will was not valid.

Wilson then appealed the order.

West Virginia Supreme Court of Appeals Case number: 18-0156

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