Roy D. Law
Hunter, Law & Levine
Buckhannon, West Virginia
Counsel for Arthur D. Clark
W. T. Weber
208 Main Avenue
Weston, West Virginia
Counsel for Appellants
J. Michael Benninger
William L. Frame, Esq.
Wilson, Frame & Metheny
Morgantown, West Virginia
Counsel for Appellee Virginia Williams
JUSTICE WORKMAN delivered the Opinion of the Court.
1. "The writing of his name by the maker of a holographic
instrument in its first line is an equivocal act and, unless it
affirmatively appears from the face of the instrument that the
writing of his name at that place is intended as his signature,
does not satisfy the statutory requirement that a valid will must
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." Syl. Pt. 2, Black v.
Maxwell, 131 W. Va. 247, 46 S.E.2d 804 (1948).
2. The procurement by the testator of attesting witnesses for
a holographic instrument fulfills the requirement established in
Black v. Maxwell, 131 W. Va. 247, 46 S.E.2d 804 (1948), that a
holographic will which does not bear a signature at its closing but
does include the maker's name in its opening line must provide some
internal evidence that the maker intended the writing of his name,
wherever its placement, as his signature.
Appellants Viola Jewell and Arthur D. Clark appeal from an
order of the Circuit Court of Lewis County which declared the
holographicSee footnote 1 instrument dated December 27, 1983, not to be the last
will and testament of William Walter Clark ("Walter Clark") and
further determined that Walter Clark died intestate. We reverse,
finding that the writing at issue is a valid holographic will.
Walter Clark died on September 20, 1988, owning both real and
personal property. A holographic writing purporting to be the last
will and testament of Walter Clark, dated December 27, 1982, was
offered for probate along with the affidavit of two attesting
witnesses. Although Walter Clark did not sign the will in the
presence of the witnesses, he declared the same to be his last will
and testament in their presence when they attested the will on
January 2, 1984. By order dated November 10, 1988, the Clerk of
the Lewis County Commission probated the document dated December
27, 1983, as the last will and testament of Walter Clark.
On January 18, 1990, Arthur D. Clark, as executor of the will of Walter Clark, filed a civil action in the Circuit Court of Lewis County seeking interpretation of the will. In response to a motion
and cross-motion for summary judgment, the circuit court, by order
dated March 14, 1991, adjudged the holographic instrument dated
December 27, 1983, purporting to be William Clark's last will and
testament null and void for failure to satisfy the requirements of
West Virginia Code § 41-1-3 (1982). Appellants challenge the
circuit court's conclusion that the instrument in question is not
a valid testamentary writing.
The statutory requirements for drafting a valid will are set
forth in West Virginia Code § 41-1-3. That section 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 parties have stipulated that the instrument in question is in the handwriting of Walter Clark. The dispute at issue arose for the simple reason that the instrument offered for probate as Walter Clark's last testament does not bear his signature at the bottom of the document.
The document at issue begins with the heading "Will of Walter Clark" and bears the designation 12-27-83 to the right of its heading. The initial sentence of the instrument begins "Be it
remembered that I Walter Clark of Route 3[,] Box 100[,] Weston[,]
W[.] Va[.] county Lewis being of sound mind and memory do hereby
make, execute and declare last will and testament." The document
closes by stating "Witnesses By names below (without Bond)" and
immediately below this line designates two separate lines with the
words "Signed" at the left hand margin. To the right of each line
designated for signatures are the signatures of Gerald William and
Carol S. Williams, both bearing a signatory date of January 2,
Although holographic wills are unquestionably valid in this
State, the provisions of West Virginia Code § 41-1-3 require that
a holographic instrument must be signed by the testator. The
statute, however, does not address where the testator's signature
must appear on the document. "The only express requirement with
respect to the act of signing is that it be done in such manner as
to make it manifest that the name is intended as a signature."
Black v. Maxwell, 131 W. Va. 247, 255, 46 S.E.2d 804, 809 (1948)
(citing LaRue v. Lee, 63 W. Va. 388, 60 S.E. 388 ). Because
there is no requirement that holographic wills be witnessed,
appellants argue that the signatures of the two attesting witnesses
provide the necessary evidence that Walter Clark intended the
placement of his name, which appears twice at the beginning of the
document, on such instrument as his signature.
This Court previously addressed the question of whether the
placement of a testator's name in the first sentence of a
holographic instrument fulfilled the signature requirement of West
Virginia Code § 41-1-3. In Black the
vital inquiry . . . [was] whether the act of the
writer of the instrument in inserting his name in
the first line in the part generally designated as
the caption or the exordium, and in not affixing
his name at the end or the bottom or on the margin
of the paper, satisfied the requirement of the
statute that to be a will the written instrument
must be signed by the testator in such manner as to
make it manifest that the name is intended as a
131 W. Va. at 255, 46 S.E.2d at 809. We ruled that
[t]he writing of his name by the maker of a
holographic instrument in its first line is an
equivocal act and, unless it affirmatively appears
from the face of the instrument that the writing of
his name at that place is intended as his
signature, does not satisfy the statutory
requirement that a valid will must 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.
Id. at 247-48, 46 S.E.2d at 805, Syl. Pt. 2.
In reliance on Black, appellees contend that there is no internal evidence within the document in question which establishes that Walter Clark intended the instrument as his last will and testament. The importance of a signature on a will is its indication of final testamentary intent. When a document purporting to be testamentary in nature ends without a signature, the question of the instrument's completeness is immediately raised. The issue of finality surfaced in Black because the
holographic instrument in question was a single sheet of paper, to
which three separate documents were pasted, each bearing a separate
date. The first writing bore the date of September 8, 1944, and
concluded with the maker's signature. The second writing dated
February 9, 1946, was prepared as a codicil to the earlier
testament and likewise contained the maker's signature. But the
third writing attached to the sheet, which was dated February 11,
1946, stood in stark contrast to the prior two writings as it
closed without the signature of the maker. The first two writings
were probated as the last will and testament of Mr. Maxwell but the
third and most recent writing was determined invalid because there
was "nothing to indicate, from the face of that instrument, that
. . . [Mr. Maxwell] wrote his name in the opening sentence for the purpose of finally adopting, ratifying or authenticating the contents of the paper which follow his name." 131 W. Va. at 261, 46 S.E.2d at 812.
The Court in Black surmised as to the possible explanation for
Mr. Maxwell's failure to sign the third writing:
The reason for his failure to sign his name at the end of the writing dated February 11, 1946, can not be ascertained or determined. It can rest only on mere speculation; but that there was some reason for his failure to complete the writing by affixing his signature to it is clear beyond question. He may have wished to change or revise and clarify some of the statements in the writing which may be difficult to interpret or understand, or to postpone its completion in its present form by later signing his name at the end. He may have failed to sign it through inadvertence.
Whatever it was, something caused him to
hesitate and to stop before its final
completion. Whatever his reason, he failed to
affix his signature at the end of the writing.
The evidence of his intent to use as his
signature his name in the first line of the
written instrument dated February 11, 1946,
must appear from the instrument itself,
. . . .
131 W. Va. at 260-61, 46 S.E.2d at 811 (emphasis supplied).
The case at bar is factually inapposite to Black. Because
Walter Clark's purported will is a single instrument rather than a
series of signed as well as unsigned writings, as was the case in
Black, there is no evidence in this case that suggests that Walter
Clark forgot to sign the instrument at its closing. Additionally,
there are "no blanks or anything that would indicate that it was
not . . . [his] last will and testament." Hall v. Brigstocke, 190
Va. 459, 466, 58 S.E.2d 529, 533 (1950) (holographic will was valid
although name of testatrix appeared at top of document because
language of document provided necessary evidence of testamentary
intent). It seems 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. In fact the document does begin, "Be it
remembered that I Walter Clark . . . do hereby make, execute and
declare last will & testament."
In further contrast to the instrument in Black, the Walter
Clark document does not present any glaring evidence of non-completeness. Immediately following the last sentence of the
instrument wherein Walter Clark appointed Arthur D. Clark as his
executor he designated two specific places for attesting
signatures. Furthermore, the document directed the disposition of
all of the testator's property. We find the fact that Walter Clark
intended to have his will witnessed, which is evident from the
document's preparation and the fact that he ultimately, albeit not
on the day he executed the instrument, obtained the signatures of
two attesting witnesses to be the type of evidence required by
Black as proof of the maker's testamentary intent.
Appellees argue that the affidavits of the attesting witnesses
which were considered when the instrument was being probated
constitute extrinsic evidence which is not admissible under Black
to prove testamentary intent. On this point we agree. But it is
not necessary to look to the affidavits. We view the testator's
act of securing the two attesting witnesses, although unnecessary
for a purely holographic will, as the type of affirmative evidence
which demonstrates that Walter Clark did in fact intend the
December 27, 1983, instrument to be his last will and testament.
Accordingly, the procurement by the testator of attesting witnesses for a holographic instrument fulfills the requirement established in Black that a holographic will which does not bear a signature at its closing but does include the maker's name in its opening line must provide some internal evidence that the maker intended the writing of his name, wherever its placement, as his signature.
Based on the foregoing opinion, we hereby reverse the decision of the Circuit Court of Lewis County.
Footnote: 1A holographic will is a document that is "wholly in the handwriting of the testator," and, unlike non-holographic wills, does not require the attesting signatures of two witnesses to be valid. See W. Va. Code § 41-1-3 (1982); see generally In re Briggs' Estate, 148 W. Va. 294, 134 S.E.2d 737 (1964).