Key Requirements of Will Creation

A will is an important document for many reasons, the primary one being that it disposes of a person’s property without that person being present to ensure that his or her wishes are being fulfilled. This in part explains why creating a will entails a great deal of formal requirements, designed to (a) impart upon the person creating the will the importance of the document and (b) ensure that the document, which exists well after the testator’s death, represents the most accurate representation of the testator’s wishes.

A case from West Virginia, Brown v. Fluharty, No. 12-0365 (September 12, 2013) (W. Va.), provides an excellent example of how proper estate planning could have prevented a significant amount of problems and expense that resulted from a will not meeting one of the most basic formal requirements: a signature.

The issue before the Supreme Court of Appeals of West Virginia was whether the testator’s failure to sign his typewritten will caused the document to be null and void, instead of replacing a prior will as the testator intended. The testator in question was Bright McCausland, a resident of West Virginia, who executed an initial “Last Will and Testament” in October of 2009 that sought to distribute his personal property among his friends, neighbors, and the West Virginia State Museum. About six months later, as Mr. McCausland’s health deteriorated, he dictated the terms of a new will to his nephew, who then typed Mr. McCausland’s wishes into a document entitled, “Bright McCausland – Last Will.”

Mr. McCausland’s health care providers from the nursing home where he resided signed the will and affidavits stating that they had in fact witnessed Mr. McCausland state that his new will represented his final desires. Unfortunately, Mr. McCausland did not sign the new will himself, and no one signed or marked the will on his behalf at his direction.

Mr. McCausland passed away on April 22, 2010, and his first will was probated shortly thereafter. Over a year later, a group of petitioners sought to have the original will revoked and the new will probated, as the new will purported to “revoke all former wills previously made” by Mr. McCausland.

In February of 2012, the circuit court decided that the original will remained in effect, as the result of Mr. McCausland not signing his name on the new will. In other words, the court found that the new will was not valid under the laws of West Virginia.

Over a year and a half later, the Supreme Court of Appeals of West Virginia agreed with the lower court, noting that the laws requiring a valid will to be signed by the testator were “enacted to protect and sanctify the execution of a will to prevent substitution or fraud.” Further, the court stated that Mr. McCausland could have written out his name in full, or just initialed the document, or even had someone guide his hand if he was physically unable to put pen to paper. As a result, the court determined that, because Mr. McCausland had failed to undertake the proper formalities, the second will was merely a typewritten document with no legal effect.

It is important to note that Mr. McCausland died in April of 2010, and that this case was decided in September 2013. With some basic estate planning guidance, the parties involved in this case could have avoided nearly two and a half years of court filings, attorney’s fees, and stress involved with litigating a case through the judicial system, all the way to the highest court of West Virginia.

This underscores the importance of ensuring that one’s will, trusts, insurance policies, and other estate planning documents meet all of the necessary requirements to be valid and have legal effect under the applicable state law. If you or someone you know has questions about estate planning or requires assistance in creating or modifying an estate plan, please do not hesitate to contact the experienced attorneys at Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning needs. Please feel free to contact us for an initial consultation.

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