A Strong Offense
A Stronger Defense
Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:
Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.
For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*
So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor?
In Whitacre v. Crowe, an Ohio appellate court determined that Kay Whitacre’s will was invalid under these circumstances because Kay did not sign her will in the conscious presence of the witnesses and the witnesses did not attest and subscribe the will in the conscious presence of the testator.
By the plain language of the statute, the witnesses attesting and subscribing the will must do so “within the range of any of the testator’s senses,” which expressly excludes sights and sounds relayed through electronic means. The court expressly noted that the video monitor involved in this situation “worked in one way in that it only allowed the witnesses to see and hear Kay, while Kay could not see and hear the witnesses via any electronic means.” Kay, apparently, had not wanted the witnesses in the room with her because she did not want them to see her illness.
Because the issue of what satisfies the requirement of “conscious presence” was one of first impression in Ohio, the court engaged in a lengthy discussion of the concept drawing upon some interesting cases from other jurisdictions, such as Texas, Minnesota, California, Mississippi, and New Hampshire. The Ohio court’s conclusion was that “conscious presence” requires that the subscribing and attesting witnesses be in the testator’s range of vision or that the testator hear and understand that the witnesses are subscribing and attesting the will at the time they are doing so. In this sense, Ohio’s statute is broader than those in jurisdictions that follow the pure “line of sight” requirement.
*Note: This statute was modified effective 1/13/2012. A slightly different statute was in effect at the time of the execution of the will and at the time of Kay’s death. The differences, however, are immaterial to our discussion.