Kanawha County 15-C-1624
Tracie Wilson, by counsel Shannon M. Bland, appeals the
January 24, 2018, order entered in the Circuit Court of
Kanawha County that granted summary judgment in favor of
Respondents Tonya Parker and Tamra Stewart, who contested the
validity of the parties' mother's purported
holographic will. Respondents, by counsel Gregory E. Elliott,
filed a response in support of the circuit court's order.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
parties are sisters. Their mother, Joyce M. Johnson
("the decedent"), died on June 27, 2015. Respondent
Tonya Parker was thereafter appointed administratrix of the
decedent's estate. Subsequent to the appointment, petitioner
presented for probate a purported holographic will of the
decedent dated June 24, 2015, that left everything the
decedent owned to petitioner. The purported holographic will
was admitted to probate, petitioner was appointed
administratrix of the estate, and Respondent Tonya
Parker's prior appointment was revoked.
purported holographic will, entitled "Last will and
testament," stated as follows:
I, Joyce M. Johnson in [sic] sound body and mind this day the
24th of June 2015 leave all my estate to my
daughter Tracie D. Wilson[.] I want Tracie Wilson to be my
power of attorney. I do not want any other member of my
family to have anything of my estate. This will cancels any
previous wills I have.
purported signature of "Joyce M. Johnson" appeared
below the foregoing paragraph as did the signatures of two
"witnesses," Lorrie Harmon and Burton Sampson, who
were petitioner's friends. The will was allegedly
notarized by one Carry D. Grishaber (now Clark) on June 26,
2015. Petitioner and both Ms. Harmon and Mr. Sampson 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. In her affidavit, petitioner stated that
"[t]he will was not signed on June 24, 2015, because no
one was sure about a NOTARY being required or not."
August 26, 2015, respondents filed a complaint in the Circuit
Court of Kanawha County against petitioner alleging, inter
alia, that the purported holographic will "is a forgery,
and fails to satisfy the statutory requirements of a
will." Attached to the complaint was the October 1,
2015, report of handwriting expert Vickie L. Willard, who was
retained for the purpose of determining whether the signature
of "Joyce M. Johnson" at the bottom of the writing
was written by the same person who wrote the name "Joyce
M. Johnson" in the body of the document. Ms. Willard
compared a copy of the purported will with hand-writing
exemplars of the decedent that included a series of checks, a
note, and other assorted documents. Ms. Willard opined
"that the signature on the Will was not written by the
same individual who signed the name Joyce M. Johnson on the
exemplars[;]" that "[d]ifferences were observed
between the writing of the name Joyce M. Johnsons [sic] in
the body of the Will and the signature on the Will[;]"
and that "the individual who wrote the name Joyce M.
Johnson in the body of the Will is not the same individual
who signed the name of Joyce M. Johnson as testator of the
thereafter filed a motion for summary judgment to which
petitioner filed a response and a "counter motion for
summary judgment." By order entered on February 2, 2016,
the circuit court declined to rule on the parties'
respective motions and, instead, held them in abeyance
discovery, respondents deposed Ms. Grishaber, who testified
that she did not notarize the purported will even though her
signature and notary stamp appeared on the document; that,
although she knew Ms. Harmon, she had not seen her in several
years; and that she did not know either petitioner or the
other witness, Mr. Sampson. Subsequently, during discovery,
petitioner admitted that, in fact, Ms. Grishaber did not go
to the hospital and notarize the purported will.
December 23, 2016, respondents filed a second motion for
summary judgment to which they attached the deposition
testimony of Ms. Grishaber. They subsequently filed a
supplement to the motion to which was attached an affidavit
of West Virginia State Trooper S.E. Wolfe, along with the
criminal complaints he filed against petitioner and Ms.
Harmon in connection with the purported will. According to
Trooper Wolfe, Ms. Harmon advised him that neither Ms. Harmon
nor the other witness, Mr. Sampson, saw the decedent create
or sign the purported will and that, the day after the
decedent's death, petitioner forged the decedent's
signature on the purported will in Ms. Harmon's presence.
Trooper Wolfe's affidavit stated that petitioner enlisted
"the aid of three (3) co-conspirators, including a
Notary Public, to create, witness, [and] forge the deceased
Joyce M. Johnson's signature, and have the fraudulent
holographic Will notarized and then
probated." Petitioner was charged with one felony
count each of financial exploitation of an elderly person,
protected person, or incapacitated adult; obtaining money by
false pretenses; conspiracy; forgery of public record,
certificate, return or attestation of court or officer; and
filed a reply to respondents' second motion for summary
judgment and also filed her own motion for summary judgment
that included a supplemental report by respondents'
handwriting expert, Ms. Willard, who had reviewed additional
documents containing more recent signatures of the decedent
and compared them to the purported will. In a report dated
March 24, 2017, Ms. Willard confirmed her prior opinions that
"the testator's signature on the Will was not
written by the same individual who signed the name Joyce M.
Johnson on the specimen [i.e. exemplar] documents[, ]"
and "that the individual who wrote the name in the text
of the Will is not the same individual who signed as
testator." Ms. Willard also newly opined that
"[t]he name Joyce M. Johnson written in the text of the
Will exhibits a high degree of consistency with the specimen
signatures. This consistency will support an opinion that the
name Joyce M. Johnson written in the body of the text was
written by the same individual who wrote the signature on the
also submitted a report by Ronald N. Morris, a forensic
document examiner, who, like Ms. Willard, reviewed original
known writings of the decedent and compared them to the
purported will. Mr. Morris opined that "[t]he writer of
the submitted known writing, 'Joyce M. Johnson'
(Exhibit K1) in all probability wrote the six lines of
writing - the holographic will - at the top of the document
described as Exhibit Q1." He further opined that
"[t]he writer of the submitted known writing, 'Joyce
M. Johnson' (Exhibit K1) in all probability did not write
the questioned 'Joyce M. Johnson' signature below the
six lines of writing above it."
summary judgment hearing was conducted on January 8, 2018. By
order entered on January 24, 2018, the circuit court granted
summary judgment in favor of respondents, concluding that,
based upon the evidence presented, the statutory requirements
for a valid will were not satisfied. Accordingly, the court
ordered that the purported will be removed from probate; that
it is ...