Background
David Anthony Greenamyer died in June 2023. His wife, Tammy Everhart (the propounder), submitted a revised will dated January 28, 2023, for probate in Davidson County. The will bore Greenamyer’s own signature and the purported signatures of two witnesses—Larry Nash and Dennis Nash, auto mechanics employed by Greenamyer. The will was notarized by Karen Nash, their mother and another employee of Greenamyer.
At a pretrial hearing, propounder disclosed that Karen Nash had signed the witnesses’ names because their hands were dirty from working on vehicles. The mechanics had verbally consented and asked Karen Nash to sign for them, but they never themselves touched the pen. The testator and both witnesses were present when Karen Nash signed. Greenamyer’s children (the caveators) argued that N.C.G.S. § 31-3.3—which governs attested wills—does not permit attesting witnesses to have a third party sign on their behalf, rendering the Revised Will invalid.
Both sides moved for summary judgment. The trial court agreed with the caveators, concluding the Revised Will was invalid as a matter of law. Propounder appealed, arguing that absent an express statutory prohibition, the general common-law rule permitting adopted signatures should apply.
The Court’s Holding
The Court of Appeals affirmed in a published opinion resolving a question of first impression: whether an attesting witness may adopt a signature written entirely by a third party, with no physical participation by the witness. The court held that N.C.G.S. § 31-3.3 does not permit this—attesting witnesses must physically sign the will themselves.
The court applied the canon of statutory construction expressio unius est exclusio alterius (the expression of one thing excludes others). Section 31-3.3(b) expressly authorizes the testator to sign the will “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.” Section 31-3.3(d), governing witnesses, provides only that they “must sign the will in the presence of the testator”—no analogous third-party signing exception appears. The General Assembly’s deliberate inclusion of a third-party option for testators and deliberate omission of the same for witnesses signals that witnesses must sign for themselves.
The court distinguished In re Pope’s Will, 139 N.C. 484, 52 S.E. 235 (1905), where the witness held the pen while her name was written, thereby “taking part in the physical act of writing.” The Greenamyer witnesses, by contrast, never touched the pen. The court also declined to apply the general adopted-signature rule from Barrett v. City of Fayetteville, 248 N.C. 436 (1958)—that rule yields where the legislature has enacted specific will-execution requirements. Judge Tyson concurred in result only, emphasizing the separate ground that the signatures were invalid because there was no evidence they were made in the witnesses’ presence as required by § 31-3.3(d).
Key Takeaways
- Attesting witnesses to a North Carolina attested will must physically sign the will themselves. Having a third party sign a witness’s name—even with the witness’s oral consent, in the witness’s presence, and at the witness’s direction—does not satisfy N.C.G.S. § 31-3.3.
- The rule is asymmetric by design: § 31-3.3(b) expressly permits the testator to direct another person to sign on his or her behalf. No such option exists for witnesses. Testators may be physically incapacitated; witnesses, who serve no irreplaceable role, can simply be replaced.
- The only recognized exception remains the Pope rule: a witness who holds the pen while another guides it has taken sufficient physical part in the signing. Complete non-participation by the witness is fatal.
- If a witness cannot sign (dirty hands, injury, tremor), the practitioner’s solution is to pause, allow the witness to clean up and return, or substitute a different witness—not to have the notary or anyone else sign on the witness’s behalf.
Why It Matters
Will execution formalities in North Carolina are strict and unforgiving, and Greenamyer closes a potential workaround that some practitioners might have assumed was permissible under the general adopted-signature rule. For estate-planning attorneys, the holding is a concrete checklist item: every attesting witness must physically sign the instrument in their own hand. Given that defective witness signatures are among the most litigated grounds for will caveats in North Carolina, this published opinion clarifies the rule and limits the ability to cure execution errors after the fact.
For estate litigators, Greenamyer confirms that the legislature’s specific language in § 31-3.3 governs over more permissive common-law signature rules. Caveat petitions based on third-party witness signatures now have clear precedent to cite, and proponents facing similar defects—including circumstances where a notary signed on the witnesses’ behalf—face an uphill battle at summary judgment. Judge Tyson’s concurrence also identifies an alternative ground—failure to sign in the witnesses’ presence—that litigants may raise separately.