Background
David Anthony Greenamyer died in June 2023. His wife, Tammy Everhart (“propounder”), presented a document dated January 28, 2023 to the Clerk of Superior Court for Davidson County as his revised will. The will bore the decedent’s signature and the purported signatures of two witnesses—brothers Larry and Dennis Nash—as well as a notarial acknowledgment by Karen Nash, who was both the decedent’s employee and a personal friend of propounder. Decedent’s children (“caveators”) filed a will caveat alleging the revised will was a forgery.
At a pretrial hearing, propounder disclosed a set of facts that framed the central issue: when the time came to have the will witnessed, Karen Nash called in her husband and son—who were auto mechanics with literally dirty hands at the time. They asked Karen to sign on their behalf, and she did, with their consent and at their direction, while both the witnesses and the testator were present. The witnesses themselves never touched the pen. Based on those stipulated facts, the trial court granted summary judgment in favor of the caveators, concluding that N.C.G.S. § 31-3.3—which governs attested written wills—does not permit witnesses to have a third party sign for them. Propounder appealed.
The Court’s Holding
The Court of Appeals affirmed in a published opinion by Judge Arrowood, with Judge Stroud concurring and Judge Tyson concurring in result only. The court framed the issue as a question of first impression: whether an attesting witness to a North Carolina will may adopt a signature written entirely by a third party without any physical participation by the witness.
The court looked to the plain language of N.C.G.S. § 31-3.3, which authorizes the testator to sign “by actually signing the will or by having someone else in the testator’s presence and at the testator’s direction sign the testator’s name thereon”—an express proxy-signing option. The same statute’s witness provision, subsection (d), simply says the attesting witnesses “must sign the will in the presence of the testator.” It contains no comparable authorization for proxy signing. Applying the expressio unius est exclusio alterius canon of statutory construction—the inclusion of one thing implies the exclusion of another—the court concluded that the General Assembly deliberately omitted a proxy-signing option for witnesses. Because subsection (b) expressly permits testators to use a proxy but subsection (d) does not extend the same option to witnesses, the legislature’s silence was intentional: witnesses must actually sign themselves.
The court distinguished its 1905 precedent In re Pope’s Will, in which a witness held the pen while a third party wrote her name, because that witness had taken some “physical part in the act” of writing. The court declined to decide whether the Pope exception survived its analysis, but ruled that a witness who takes no physical part whatsoever cannot satisfy the attesting-witness signature requirement. Policy considerations reinforced the result: requiring witnesses to sign in their own hand reduces fraud risk, ensures authentic evidence of testamentary execution, and preserves the ability to authenticate a will by a witness’s handwriting if the witness is later unavailable. See N.C.G.S. § 28A-2A-8.
Key Takeaways
- N.C.G.S. § 31-3.3 does not permit attesting witnesses to have a third party write their signature on a will; the witnesses must take some physical part in signing. A witness who directs another to sign and never touches the pen does not satisfy the statute.
- The expressio unius canon resolves the ambiguity: the legislature expressly authorized testator proxy-signing in § 31-3.3(b) but included no parallel authorization for witness proxy-signing in § 31-3.3(d), and that omission is intentional.
- The Pope exception (1905)—where a witness held the pen while another guided the writing—may still be valid, but the court expressly reserved the question. Practitioners should not rely on Pope for any scenario short of the witness making direct physical contact with the signing instrument.
- Wills executed at informal or rushed signings—where a notary or other present party signs on behalf of witnesses who are unable or unwilling to pick up a pen—are at serious risk of invalidity under this ruling.
- Witnesses who cannot physically sign (e.g., due to temporary physical incapacity) should be replaced with other competent witnesses rather than accommodated by proxy signature.
Why It Matters
In re Greenamyer settles a question that NC courts had left open since 1905 and is the first published opinion to directly hold that attesting witnesses cannot adopt a signature written entirely by a third party. For estate-planning practitioners, the practical message is clear: do not allow a notary, family member, or any third party to sign on behalf of witnesses during a will execution ceremony. Even if all parties are present and consent, the result is a facially invalid will.
The ruling also has diagnostic value for probate litigation. When a will surfaces after the testator’s death and there are questions about how the witness signatures were made, this decision gives caveators a statutory argument that does not require proving fraud—a will executed with third-party witness signatures is invalid as a matter of law under § 31-3.3 regardless of intent. Attorneys drafting execution protocols and supervising remote or difficult signings should document that each witness personally applied pen to paper.