Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. Parker

Supreme Court of West Virginia

February 11, 2019

Tracie Wilson, Defendant Below, Petitioner
v.
Tonya Parker and Tamra Stewart, Plaintiffs Below, Respondents

          Kanawha County 15-C-1624

          MEMORANDUM DECISION

         Petitioner 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.

         This 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.

         The 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.[1] 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to probate, petitioner was appointed administratrix of the estate, and Respondent Tonya Parker's prior appointment was revoked.[2]

         The 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.

         The 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.[3] 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."

         On 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 Will[.]"

         Respondents 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 pending discovery.

         During 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.

         On 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."[4] 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 computer fraud.[5]

         Petitioner 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 submitted specimens."

         Petitioner 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."[6]

         A 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.