Brown. v. Fluharty (Per Curiam Opinion)Annotate this Case
In 2009 McCausland, executed a “Last Will and Testament” naming Fluharty as executor and bequeating the residue of his estate to a Trust, established in 2002. Months later, McCausland was physically incapacitated and living in a nursing care facility. It is alleged that McCausland dictated the terms of a new will to his nephew, Brown. McCausland did not sign or mark the typewritten will, and no one signed or marked it on his behalf. Two of 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 [McCausland] stating that the new last will and testament contained his final desires.” In 2010, McCausland died and the original will was probated and recorded. More than a year later, the petitioners sought to have the original will revoked and the second will admitted to probate. The trial court held that, under W. Va. Code § 41-1-3, the second document is not a valid will. The West Virginia Supreme Court affirmed. 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 these circumstances.