WVC 41 -
CHAPTER 41. WILLS.
WVC 41 - 1 -
ARTICLE 1. CAPACITY TO MAKE; REQUISITES; VALIDITY.
WVC 41 - 1 - 1
§41-1-1. Who may make will and as to what property.
Every person not prohibited by the following section may, by
will, dispose of any estate to which he shall be entitled at his
death, and which, if not so disposed of, would devolve upon his
heirs, personal representative, or next of kin. The power hereby
given shall extend to any estate, right, or interest, to which
the testator may be entitled at his death, notwithstanding he may
become so entitled after the execution of the will.
WVC 41 - 1 - 2
§41-1-2. Who may not make will.
No person of unsound mind, or under the age of eighteen
years, shall be capable of making a will.
WVC 41 - 1 - 3
§41-1-3. Must be in writing; witnesses.
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.
WVC 41 - 1 - 4
§41-1-4. Execution of power of appointment.
No appointment made by will, in the exercise of any power,
shall be valid unless the same be so executed that it would be
valid for the disposition of the property to which the power
applies, if it belonged to the testator; and every will so
executed shall be a valid execution of a power of appointment by
will, notwithstanding the instrument creating the power expressly
requires that a will made in execution of such power shall be
executed with some additional or other form of execution or
WVC 41 - 1 - 5
§41-1-5. Wills of personal estate by soldiers, sailors or
Notwithstanding the two preceding sections, a soldier being
in actual military service, or a mariner or seaman being at sea,
may dispose of his personal estate as he might heretofore have
done; and the will of a person domiciled out of this state at the
time of his death shall be valid as to his personal property in
this state, if it be executed according to the law of the state
or country in which he was so domiciled.
WVC 41 - 1 - 6
§41-1-6. Revocation by divorce; no revocation by other changes of
(a) If after executing a will the testator is divorced or his
marriage annulled, the divorce or annulment revokes any disposition
or appointment of property made by the will to the former spouse,
any provision conferring a general or special power of appointment
on the former spouse, and any nomination of the former spouse as
executor, trustee, conservator, or guardian, unless the will
expressly provides otherwise. Property prevented from passing to
a former spouse because of revocation by divorce or annulment
passes as if the former spouse failed to survive the decedent,
except that the provisions of section three, article three, chapter
forty-one do not apply, and other provisions conferring some power
or office on the former spouse are interpreted as if the spouse
failed to survive the decedent. If provisions are revoked solely
by this section, they are revived by testator's remarriage to the
former spouse. For purposes of this section, divorce or annulment
means any divorce or annulment which would exclude the spouse as a
surviving spouse. A decree of separation which does not terminate
the status of husband and wife is not a divorce for purposes of
this section. No change of circumstances other than as described
in this section revokes a will.
(b) This section applies to all divorces, annulments or
remarriages which become effective after the fifth day of June, one
thousand nine hundred ninety-two.
WVC 41 - 1 - 7
§41-1-7. Revocation generally.
No will or codicil, or any part thereof, shall be revoked,
unless under the preceding section, or by a subsequent will or
codicil, or by some writing declaring an intention to revoke the
same, and executed in the manner in which a will is required to
be executed, or by the testator, or some person in his presence
and by his direction, cutting, tearing, burning, obliterating,
canceling or destroying the same, or the signature thereto, with
the intent to revoke.
WVC 41 - 1 - 8
§41-1-8. Revival after revocation.
No will or codicil, or any part thereof, which shall be in
any manner revoked, shall, after being revoked, be revived
otherwise than by the re-execution thereof, or by a codicil
executed in the manner hereinbefore required, and then only to
the extent to which an intention to re-revive the same is shown.
WVC 41 - 1 - 9
§41-1-9. Effect of subsequent conveyance.
No conveyance or other act subsequent to the execution of a
will shall, unless it be an act by which the will is revoked as
aforesaid, prevent its operation with respect to such interest in
the estate comprised in the will as the testator may have power
to dispose of by will at the time of his death.
WVC 41 - 1 - 10
§41-1-10. On what wills chapter operates; when re-executed wills
deemed to be made.
The validity and effect of wills executed prior to the time
this code becomes effective shall be determined by the laws of
this state in force at the time of their execution. Every will
re-executed, or republished, or revived by any codicil, shall,
for the purposes of this chapter, be deemed to have been made at
the time at which the same shall be so re-executed, republished,
WVC 41 - 2 -
ARTICLE 2. COMPETENCY OF WITNESSES.
WVC 41 - 2 - 1
§41-2-1. Competency of witnesses who are beneficiaries.
If a will be attested by a person to whom, or to whose wife
or husband, any beneficial interest in any estate is thereby
devised or bequeathed, if the will may not be otherwise proved
such person shall be deemed a competent witness; but such devise
or bequest shall be void, except that, if such witness would be
entitled to any share of the estate of the testator, in case the
will is not established, so much of his share shall be saved to
him as shall not exceed the value of what is so devised or
bequeathed. In case the will be contested any such attesting
witness may, at the instance of any contestant, be required,
either in court or by deposition, to testify as upon, and with
the effect of, cross-examination; and the giving of such
testimony or testimony in rebuttal thereto by such attesting
witness, shall not, if the will be established or admitted to
probate, affect in any manner the devise or bequest to such
attesting witness, or to the wife or husband of such witness.
WVC 41 - 2 - 2
§41-2-2. Creditors may be witnesses.
If a will charging any estate with debts be attested by a
creditor, or the wife or husband of a creditor, whose debt is so
charged, such creditor shall, notwithstanding, be admitted a
witness for or against the will.
WVC 41 - 2 - 3
§41-2-3. Executor may be witness.
No person shall, on account of his being executor of a will,
be incompetent as a witness for or against the will.
WVC 41 - 3 -
ARTICLE 3. PROVISIONS AS TO CONSTRUCTION.
WVC 41 - 3 - 1
§41-3-1. When will takes effect.
A will shall be construed, with reference to the estate
comprised in it, to speak and take effect as if it had been
executed immediately before the death of the testator, unless a
contrary intention shall appear by the will.
WVC 41 - 3 - 2
§41-3-2. When advancement deemed satisfaction of devise or
A provision for or advancement to any person shall be deemed
a satisfaction in whole or in part of a devise or bequest to such
person, contained in a previous will, if it would be so deemed in
case the devisee or legatee were the child of the testator; and
whether he be a child or not, it shall be so deemed in all cases
in which it shall appear from parol or other evidence to have
been so intended.
WVC 41 - 3 - 3
§41-3-3. Death of devisee or legatee before testator.
If a devisee or legatee die before the testator, or be dead
at the time of making of the will, leaving issue who survive the
testator, such issue shall take the estate devised or bequeathed,
as the devisee or legatee would have done if he had survived the
testator, unless a different disposition thereof be made or
required by the will. And if the devise or bequest be made to two
or more persons jointly, and one or more of them die without
issue, or be dead at the time of the making of the will, the part
of the estate so devised or bequeathed to him or them shall not
go to the other joint devisees or legatees, but shall, in the
case of a devise, descend and pass to the heirs at law, and, in
the case of a bequest, go and pass to the personal
representative, of the testator, as if he had died intestate,
unless the will otherwise provides.
WVC 41 - 3 - 4
§41-3-4. Failure or invalidity of devise or bequest.
Unless a contrary intention shall appear by the will, such
real or personal estate, or interest therein, as shall be
comprised in any devise or bequest in such will, which devise or
bequest shall fail or be void, or be otherwise incapable of
taking effect, shall, if the estate be real estate, be included
in the residuary devise, or, if the estate be personal estate, in
the residuary bequest, if any residuary devise or bequest be
contained in such will, and, in the absence of such residuary
devise or bequest, shall pass as in case of intestacy. However,
when a devise or bequest shall be included in a residuary clause
of the will, which devise or bequest shall fail or be void or be
otherwise incapable of taking effect, it shall not pass as in
case of intestacy but shall pass to the remaining residuary
devisees or legatees or devisee or legatee, if any there be, in
proportion to their respective shares or interests in the
WVC 41 - 3 - 5
§41-3-5. Construction of devises in general terms.
A devise of the land of the testator, or of the land of the
testator in any place, or in the occupation of any person
mentioned in his will, or otherwise described in a general
manner, and any other general devise which would describe a
leasehold estate, if the testator had no freehold estate which
could be described by it, shall be construed to include his
leasehold estates, or any of them to which such description shall
extend, as well as freehold estates, unless a contrary intention
shall appear by the will.
WVC 41 - 3 - 6
§41-3-6. Operation of devise or bequest as exercise of power of
A devise or bequest shall extend to any real or personal
estate which the testator has power to appoint as he may think
proper, and to which it would apply if the estate were his own
property, and shall be construed to operate as an exercise of
such power with respect to such property unless a contrary
intention shall appear by the will of said testator, or unless:
(a) The instrument creating said power of appointment
(whether said instrument was executed before or after the
effective date of this section) provides that such power must be
specifically referred to and expressly exercised; and
(b) The instrument creating said power of appointment
contains a provision disposing of said real or personal estate in
the event of the failure of the donee of the power to so exercise
WVC 41 - 3 - 7
§41-3-7. Courts of equity may construe wills.
Notwithstanding any other provision of law, and
notwithstanding there is no other ground of equity jurisdiction,
courts possessing general equity powers shall have and take
jurisdiction of a suit to construe an ambiguous will at the suit
of the executor, or administrator with the will annexed, or of
any beneficiary thereunder whose interests are affected by a
construction of the ambiguous provision.
WVC 41 - 3 - 8
§41-3-8. Testamentary additions to trusts.
(a) A will may validly devise or bequeath property to the
trustee of a trust established or to be established: (i) during
the testator's lifetime by the testator, by the testator and some
other person, or by some other person including a funded or
unfunded life insurance trust, although the trustor has reserved
any or all rights of ownership of the insurance contracts; or (ii)
at the testator's death by the testator's devise to the trustee, if
the trust is identified in the testator's will and its terms are
set forth in a written instrument, other than a will, executed
before, or concurrently with the execution of the testator's will
or in another individual's will if that other individual has
predeceased the testator, regardless of the existence, size, or
character of the corpus of the trust. The devise or bequest is not
invalid because the trust is amendable or revocable, or because the
trust was amended after the execution of the will or the testator's
(b) Unless the testator's will provides otherwise, property
devised or bequeathed to a trust described in subsection (a) is not
held under a testamentary trust of the testator but it becomes a
part of the trust to which it is devised or bequeathed, and must be
administered and disposed of in accordance with the provisions of
the governing instrument setting forth the terms of the trust,
including any amendments thereto made before or after the
(c) Unless the testator's will provides otherwise, a
revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.
WVC 41 - 3 - 9
§41-3-9. Effect on existing wills.
Sections eight, nine, ten and eleven of this article apply to
a will of a testator who dies after the effective date of this
WVC 41 - 3 - 10
§41-3-10. Uniformity of application and construction.
Sections eight through eleven of this article shall be applied
and construed to effectuate its general purpose to make uniform the
law with respect to the subject of this legislation among states
WVC 41 - 3 - 11
§41-3-11. Short title.
Sections eight through eleven of this article may be cited as
the "Uniform Testamentary Additions to Trusts-Uniform Act (1991)".
WVC 41 - 4 -
ARTICLE 4. PROVISIONS AS TO PRETERMITTED CHILDREN.
WVC 41 - 4 - 1
§41-4-1. Where no child living when will made.
If any person die leaving a child, or his wife with child,
which shall be born alive, and leaving a will made when such
person had no child living, wherein any child he might have is
not provided for or mentioned, such child, or any descendant of
his, shall succeed to such portion of the testator's estate as he
would have been entitled to if the testator had died intestate;
and towards raising such portion the devisees and legatees shall,
out of what is devised and bequeathed to them, contribute
ratably, either in kind or in money, as a court, in the
particular case, may deem most proper. But if any such child, or
descendant, die under the age of eighteen years, unmarried and
without issue, his portion of the estate, or so much thereof as
may remain unexpended in his support and education, shall revert
to the person or persons to whom it was given by the will.
WVC 41 - 4 - 2
§41-4-2. Where child living when will made.
If a will be made when a testator has a child living, and a
child be born afterwards, such after-born child or any descendant
of his, if not provided for by any settlement, and neither
provided for nor expressly excluded by the will, but only
pretermitted, shall succeed to such portion of the testator's
estate as he would have been entitled to if the testator had died
intestate, toward raising which portion the devises and legatees
shall, out of what is devised and bequeathed to them, contribute
ratably, either in kind or in money, as a court in the particular
case, may deem most proper. But if any such after-born child or
descendant die under the age of eighteen years, unmarried and
without issue, his portion of the estate, or so much thereof as
may remain unexpended in his support and education, shall revert
to the person or persons to whom it was given by the will.
WVC 41 - 5 -
ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.
WVC 41 - 5 - 1
§41-5-1. Custodian of will to deliver same to clerk of county
court or executor; liability for neglect.
A person having custody of a will shall, within thirty days
after the death of the testator is known to him, deliver such
will to the clerk of the county court having jurisdiction of the
probate thereof, or to the executor named in the will, who shall
offer it for probate, or deliver it to the clerk, within a
reasonable time. Any person who shall, without reasonable cause,
neglect so to deliver a will shall be guilty of a misdemeanor,
and, on conviction, be punished by a fine not exceeding two
hundred dollars; and shall in addition be liable to any person
interested in such will for all damages caused by such neglect.
WVC 41 - 5 - 2
§41-5-2. Clerk to notify executor and beneficiaries, and to keep
will safe in his office.
Upon delivery of a will unto him as provided in the next
preceding section, the clerk shall notify by mail or otherwise
the executor and the beneficiaries named in the will, of such
delivery, and shall keep the same safe in his office until
proceedings may be had for the probate thereof, or until it is
demanded by an executor or other person authorized to demand it
for the purpose of having it proved according to law.
WVC 41 - 5 - 3
§41-5-3. Compelling production of will and offer of probate.
A county court having jurisdiction to probate a will, or the
clerk thereof in the vacation of the court, upon being informed
that any person has in his custody the will of a decedent, shall
summon him, and by proper process compel him to produce the same.
Upon the production of the will it shall remain on file in the
clerk's office until proceedings are taken for the probate
thereof. If any party desires to contest such will he may by
application to the court or the clerk thereof in vacation have a
rule against the executors and all the beneficiaries named in the
will, returnable to the court, to be served in the manner
prescribed in this article for service of process upon a petition
to probate a will in solemn form, to offer such will for probate.
If none of the executors or beneficiaries offers such will for
probate within ten days after the return day of the rule, the
court of its own motion shall offer the same for probate, so that
the parties adversely affected by the will may contest the same.
WVC 41 - 5 - 4
§41-5-4. Place of probate.
The county court shall have jurisdiction of the probate of
wills according to the following rules:
(a) In the county wherein the testator, at the time of his
death, had a mansion house or known place of residence; or
(b) If he had no such house or place of residence, then in
the county wherein any real estate devised thereby is situated;
(c) If there be no real estate devised thereby, and the
testator had no such house or place of residence, then in the
county wherein he died, or in any county wherein he had any
property at the time of his death; or
(d) If he died out of this state, his will or an
authenticated copy thereof, may be admitted to probate in any
county in this state, wherein there is property devised or
WVC 41 - 5 - 5
§41-5-5. Procedure for probate in solemn form.
The county court, sitting in a regular or special session,
shall hear and determine all proceedings to admit a will to
probate in solemn form. Upon or at any time after the production
of a will, any person may offer the will for probate in solemn
form by filing in the county court having jurisdiction a petition
duly verified by affidavit, stating when and where the testator
died, his last place of residence, the nature of his estate, the
relationship to decedent and place of residence of each of his
heirs at law and distributees, surviving wife or husband, and
each of the beneficiaries of the will. Process shall issue
against and be served upon all persons interested in the probate
of the will to appear at a day named, and show cause why the will
should not be admitted to probate. A guardian ad litem for any
person under disability shall be appointed, upon whom such
process may be served, and such process shall be served upon
parties resident in the state, and proceedings by order of
publication or service in person without the state shall be had
against all nonresidents and against all persons to the
petitioner unknown, in the same manner as process is served and
such proceeding had in suits in equity. At any time after the
petition is filed and before final order is made admitting or
refusing to admit the will to probate any person desiring to
contest the will may appear and file a notice of contest in the
proceeding, stating concisely the grounds of such contest.
Thereupon, process shall issue on such notice and be served upon
any person whose interest will be adversely affected by a refusal to admit the will to probate to appear and defend his interest.
Any person sui juris may waive service of process upon the
petition or notice, and the guardian ad litem of any person under
disability may waive service of any such process, upon such
person and upon himself. Process upon the petition or notice
shall be served at least ten days before the return day thereof.
Any petition or notice of contest hereunder may be filed in the
office of, process be issued, served and returned, and a guardian
ad litem appointed by, the clerk of the court in the vacation of
the court, and the proceeding may be matured and set down for
WVC 41 - 5 - 6
§41-5-6. Hearing and decision.
If no contest be made, the court may, on the return day of
the summons on the petition, and, if contest be made, on the
return day of the process upon notice of contest, or at any day
thereafter fixed by the court, proceed to hear and determine the
question of probate, and enter such order or judgment thereon as
the law and the evidence in the case requires.
WVC 41 - 5 - 7
§41-5-7. Appeal from probate order -- When to be taken; procedure.
Any person feeling himself aggrieved by any order or judgment
of the county commission admitting or refusing to admit any will to
probate may, within three months, or, if such a person be under any
disability within three months after such disability ceases, file
his petition in the circuit court of such county, or before the
clerk thereof, appealing to the circuit court from such order or
judgment, stating in the petition the grounds of appeal and the
parties interested in the probate of the will; and, in case of
appeal, it shall be the duty of the clerk of the county commission
promptly to transmit to the clerk of the circuit court, the will
and all original papers filed or used in the proceedings for
probate, together with copies of all orders made therein. The
clerk of the circuit court shall, upon the filing of such petition,
issue process thereon, and the case shall be proceeded in, tried
and determined in such court, regardless of the proceedings before
the county commission, and in the same manner and in all respects
as if the application for such probate had been originally made to
the circuit court.
WVC 41 - 5 - 8
§41-5-8. Appeal from probate order -- Other testamentary papers
to be produced; jury trial if desired.
If there be more than one testamentary paper in question in
any such proceeding, the circuit court shall order them all to be
produced. The circuit court shall order a trial by jury, if
demanded by any person interested, to ascertain whether the will
in question, or if there be more than one, which of them, or what
part or parts of either or any of them, is the true will of the
decedent; and, if trial by jury be not asked, the circuit court
shall proceed to try and decide the question of probate, and
shall make and enter in relation thereto such final judgment or
order as the law and the evidence may require. A copy of such
judgment or order shall be returned to, filed and recorded in,
the office of the clerk of the county court, and also any will
established in such proceedings and admitted to probate in the
circuit court shall be returned to, filed, and recorded (if not
already of record) in such office.
WVC 41 - 5 - 9
§41-5-9. Order as bar to suit in equity.
Every such order or judgment of a county court not appealed
from in proceedings for probate in solemn form, or in an ex parte
proceeding which has been converted into a proceeding in solemn
form by a contest therein, and every such order or judgment of a
circuit court on appeal, shall be a bar to a bill in equity to
impeach or establish such will, unless upon grounds which would
give to a court of equity jurisdiction over other judgments at
WVC 41 - 5 - 10
§41-5-10. Ex parte procedure to probate; appeal.
At, or at any time after, the production of a will, any
person may move the county court having jurisdiction, or the
clerk thereof in the vacation of the court, for the probate of
such will, and the court or the clerk thereof, as the case may
be, may, without notice to any party, proceed to hear and
determine the motion and admit the will to probate, or reject the
same. The probate of, or refusal to probate, any will, so made
by the clerk, shall be reported by him to the court at its next
regular session, and, if no objection be made thereto, and none
appear to the court, the court shall confirm the same. If any
person entitled to contest the probate of a will shall appear
before the clerk of the court before a decision is made by him
admitting or refusing to admit the will to probate, or before the
county court at any time before it has made an order confirming
the action of the clerk in admitting or refusing to admit such
will to probate, or before such court in any ex parte proceeding
to probate a will made in the court in the first instance before
it has made an order admitting or refusing to admit the will to
probate, and file a notice of contest of the probate of the will,
stating distinctly the several grounds of objection, process on
such notice shall be issued and the proceeding thereafter shall
be heard before the county court only, and in all respects in the
same manner as if the will had been offered for probate in solemn
form; and any judgment entered by the county court on such
proceeding shall have the same effect, and an appeal shall lie
therefrom, as if the original proceeding to probate the will had been made in solemn form: Provided,
That the only notice to the
parties interested or process against them required in such case
shall be upon the notice of contest. In all ex parte proceedings
in which there is no contest, the action of the clerk in
admitting the will to probate, when confirmed by the court, shall
have the same effect in all respects as if the will had been
admitted to probate and record by the county court in the first
WVC 41 - 5 - 11
§41-5-11. Impeachment or establishment of will -- By person who
was not party to prior proceeding; trial by jury.
After a judgment or order entered as aforesaid in a proceeding
for probate ex parte, any person interested who was not a party to
the proceeding, or any person who was not a party to a proceeding
for probate in solemn form, may proceed by complaint to impeach or
establish the will, on which complaint, if required by any party,
a trial by jury shall be ordered, to ascertain whether any, and if
any, how much, of what was so offered for probate, be the will of
the decedent. The court may require all other testamentary papers
of the decedent to be produced, and the inquiry shall then be which
one of all, or how much of any, of the testamentary papers is the
will of the decedent. If the judgment or order was entered by the
circuit court on appeal from the county commission, such complaint
shall be filed within six months from the date thereof, and if the
judgment or order was entered by the county commission and there
was no appeal therefrom, such complaint shall be filed within six
months from the date of such order of the county commission. If no
such complaint be filed within the time prescribed, the judgment or
order shall be forever binding. Any complaint filed under this
section shall be in the circuit court of the county wherein probate
of the will was allowed or denied.
WVC 41 - 5 - 12
§41-5-12. Impeachment or establishment in court -- By person under
disability or nonresident.
Notwithstanding the two preceding sections, any person
interested who, at the time of the judgment or order is under the
age of eighteen years, or is a convict or a mentally incapacitated
person, may file a complaint to impeach or establish the will,
within one year after he becomes of age, or other disability
ceases; and any person interested who, at that time, resided out of
the state, or was proceeded against by publication, may, unless he
actually appeared as a party or was personally summoned, file such
complaint within one year after the entry of such judgment or
WVC 41 - 5 - 13
§41-5-13. Probate of foreign will.
Where a will relative to an estate within this state has been
proved without the same, an authenticated copy thereof and the
certificate of probate thereof, may be offered for probate in this
state. When such copy is so offered, the county commission, or the
clerk thereof in the vacation of the commission, to which or to
whom it is offered, shall presume, in the absence of evidence to
the contrary, that the will was duly executed and admitted to
probate as a will of personalty in the state or country of the
testator's domicile, and shall admit such copy to probate as a will
of personalty in this state; and if it appears from such copy that
the will was proved in the foreign court of probate to have been so
executed as to be a valid will of land in this state by the laws
thereof, such copy may be admitted to probate as a will of real
estate. But any person interested may, within one year from the
time such authenticated copy is admitted to record, upon reasonable
notice to the parties interested, have the order admitting the same
set aside, upon due and satisfactory proof that such authenticated
copy was not a true copy of such will, or that the probate of such
will has been set aside by the court by which it was admitted to
probate, or that such probate was improperly made.
WVC 41 - 5 - 14
§41-5-14. When depositions admissible.
The deposition of an attesting witness or other person may
be read on the hearing of any proceeding to probate a will, when
under the facts and circumstances the deposition of the witness
would have been admissible on the trial of an action at law in
the circuit court. In any proceeding in which there is no
contest, the deposition may be taken at any time after the will
is offered for probate, and without notice to any person. Any
such deposition may be in the form of an affidavit. In any case
in which there is a contest, depositions may be taken at any time
after the service of process upon the notice of contest, and
after notice to all parties adversely interested as prescribed
for the taking of depositions in actions at law, and the
depositions shall be taken and certified and returned as required
in other cases. In any case in which the deposition of an
attesting witness is required, the clerk of the county court
shall transmit the original will by some safe method of
conveyance to an officer authorized to take depositions at the
place where the deposition is to be taken. A copy of the will
shall be made and filed by the clerk in his office before the
original is sent out for the purpose of taking depositions. In
any case, with the consent of all parties appearing, or of their
counsel, a photostatic copy of the original will may be used in
taking the deposition of an attesting witness instead of the
original document. Any party may have compulsory process to
compel the attendance of a witness as in any suit in the circuit
court. In any proceeding to probate or record an authenticated copy of a will that has been probated in another jurisdiction,
depositions may be taken as in an original proceeding to probate.
WVC 41 - 5 - 15
§41-5-15. Proof of will while testator living.
Any or all of the attesting witnesses to any will, at the
request of the testator, may make and subscribe an affidavit
before any officer authorized to administer oaths, in or out of
the state, stating such facts as would be required of them in
testimony in court to establish and prove the will; and if the
testator shall preserve such affidavits with the will, and the
same are produced and offered in evidence when the will is
offered for probate, they shall be admissible in evidence and
have the same probative value as if the affiants had appeared in
court or before the clerk thereof and testified to the facts
stated in the affidavit: Provided,
That such affidavits shall
not be admissible in evidence in any case in which there is a
contest over the will.
WVC 41 - 5 - 16
§41-5-16. Statements of particulars in will contests.
For the trial of any appeal under the provisions of sections
seven and ten of this article, or for the trial of any issues to
be submitted to a jury under the provisions of sections eight and
eleven of this article, if good cause therefor be shown, and
there be no unreasonable delay in applying for such order, the
circuit court, or judge thereof in vacation, may order the
contestants to file a particular statement of the facts expected
to be proved by them at the trial, and may stay the proceedings
until a reasonable time after such order is complied with; and in
like manner after the contestants have filed such statement, if
good cause therefor appear, and there be no unreasonable delay in
applying for such order, such court, or judge thereof in
vacation, may order the proponents of the will to file a
particular statement of the facts expected to be proved by them
at the trial; which statement, in either case, shall be made
under the oath of the parties or their attorneys to the effect
that the affiants believe the same will be supported by evidence
at the trial. If either the contestants or the proponents fail
to file any such statement when so required, or if any such
statement after the same has been filed be adjudged insufficient
in whole or in part, the court, or the judge thereof in vacation,
may, as justice may require, grant further time for filing same,
or permit the statement filed to be amended, or may, at the
trial, exclude the evidence offered by the party in default as to
any matter which he has so failed to state or has insufficiently
stated. But no statement which is sufficient to inform the adverse parties of the nature and substance of the facts to be
shown against or in support of the will shall be adjudged
insufficient; nor shall any such statement in any manner affect
the burden or order of proof imposed by law on the parties.
WVC 41 - 5 - 17
§41-5-17. Probated wills to be recorded and indexed.
Every will or authenticated copy of a will, when admitted to
probate under the provisions of this article, shall be recorded
by the clerk of the county court, and indexed by him in a general
index of wills, and every such will or copy when recorded shall
remain in his office except when removed therefrom by the order
of a court, or under a subpoena duces tecum, or otherwise as
provided by law.
WVC 41 - 5 - 18
§41-5-18. Recording in other counties; duty of personal
representative or devisee.
A duly certified copy of such will when probated, or of an
authenticated copy of a foreign will admitted to record as a will
of real estate, may be recorded in any other county of the state
wherein there is any real estate devised by such will. It is the
duty of the personal representative of the testator to record an
authenticated copy of such will in each county in which any real
estate is located of which the personal representative under the
powers conferred by the will may make sale and disposition, and
the duty of the devisee or devisees, claiming title under the
will to any real estate of which the personal representative may
not by the powers conferred in the will make sale and
disposition, to cause such copy to be recorded in each county in
which any such real estate is located.
WVC 41 - 5 - 19
§41-5-19. Title of bona fide purchasers of real estate from
The title of a bona fide purchaser without notice and for
valuable consideration from the heir or heirs at law of a person
who has died heretofore, or who may die hereafter, having title
to any real estate of inheritance in this state, shall not be
affected by a devise of such real estate made by the decedent,
unless within one year after the testator's death the will
devising the same, or if such will has been probated without this
state, an authenticated copy thereof, shall be filed for probate
before the court having jurisdiction for that purpose, or the
clerk thereof, and shall afterwards be admitted to probate as a
will of real estate and be recorded in the proper clerk's office:
That if any devisee under such will mentioned
in this section is at the time of the testator's death an infant,
or insane, or a convict, the limitation created by this section
shall not affect such infant, insane person or convict until
after the expiration of one year from the removal of such
WVC 41 - 5 - 20
§41-5-20. Title to real estate devised by wills; rights of
devisees and bona fide purchasers.
The title of a bona fide purchaser of real estate, without
notice and for valuable consideration, from the devisee or
devisees of a testator, a will of whom has been duly admitted to
probate devising such real estate, shall not be affected or
impaired by any devise or other disposition of any such real
estate by the testator by or in any other will or wills executed
by him subsequent to the instrument already admitted to probate
as his last will and testament, unless any such subsequently
executed will (or if any such will has been probated without the
state, an authenticated copy thereof) shall be filed for probate
in the court having jurisdiction for that purpose, or with the
clerk thereof, within one year next after the testator's death
and shall afterwards be admitted to probate as the will of such
real estate and entered of record in the proper clerk's office:
That if any devisee under any such
subsequently executed will is at the time of the testator's death
an infant, or insane, or a convict, the limitation created by
this section shall not affect the rights of any such infant,
insane person or convict until after the expiration of one year
from the removal of such disability.
Note: WV Code updated with legislation passed through the 2012 1st Special Session