(dissenting). Because I conclude that the circuit court incorrectly applied the law to the facts of this will execution case, I dissent.
The circuit court concluded that the assistance provided Robert DeThorne in executing his will vitiated his execution, under Estate of Komarr, 46 Wis. 2d 230, 236-38, 175 N.W.2d 473, 476-77 (1970), cert. denied, 401 U.S. 909 (1971). However, Komarr involved a testatrix who was physically unable to write her signature. The court stated the rule as follows:
We think that where one fails or is unable to in any manner expressly authorize another to sign for him, the statute's alternative requisite [signing] is not met by simply taking the testator's hand, as an inanimate object, and making his mark or signature.
Id. at 238, 175 N.W.2d at 477 (emphasis added).
Here, the circuit court did not find that Robert's hand was "an inanimate object," and the contestants of the will do not make that claim. In Komarr, the court *395overruled Will of Wilcox, 215 Wis. 341, 254 N.W. 529 (1934). In Wilcox, the testatrix, being aged and infirm, was aided in the making of her mark. The evidence showed that the testatrix merely touched the pen while the scrivener made her mark. The court concluded that the touching of the pen furnished objective evidence of assent and that that assent satisfied the statute. Wilcox, 215 Wis. at 343, 254 N.W. at 530. The Komarr court overruled Wilcox, "[b]ecause of the helplessness of the testator in such circumstances and the obvious opportunity for complete fraud . . .." Komarr at 238, 175 N.W.2d at 477.
Here, there is no claim of fraud. Robert's intent to execute his will is undisputed. The circuit court, however, erroneously concluded that the degree of assistance given to Robert in signing his will was impermissible under Komarr. I conclude that in this respect the circuit court made an error of law.
If, however, the circuit court intended to hold that Robert's hand was an inanimate object which did not participate in the execution of his will, that finding is clearly erroneous. One of the witnesses to the execution of Robert's will was James Bakken, the attorney who drafted the will. He testified as follows:
When I came into the room he [DeThorne] was basically flat on his back or maybe a few pillows were under him. And Mrs. DeThorne and Mrs. Smith [the other witness] assisted Bob in sitting up and propped some cushions, pillows, behind his back so that he could sit up. And got as I recall a magazine or two to put on his knees, and the will was on the magazines so there was something firm to sign against. And then I handed Bob DeThorne my pen for signing it.
Bob's grip was very weak; the pen slid out of his hand a number of times. So in the course of signing *396it, he'd hold it and . . . appear to sign, but the pen would slip from his hand . . ..
Mrs. Smith then took hold of his wrist to steady his hand and probably to help keep a grip on the pen. And at that point, then Bob did sign the will. [Emphasis added.]
Bakken's testimony is particularly important in two respects. First, he handed DeThorne his pen. It was not necessary for Bakken to place his pen in DeThorne's hand. DeThorne's acceptance of the pen was voluntary and was done for the express purpose of signing his will. Second, Bakken was an attorney who presumably knew the law respecting execution of wills. He did not express any concern that DeThorne was not executing his will properly.
Diana Smith, a friend of the DeThornes and a nurse, witnessed DeThorne's signature. She provided an uncontradicted explanation for DeThorne's difficulty in signing his will. DeThorne had difficulty sitting up because there was fluid in his peritoneal cavity, which caused distension of his abdomen. She and Mrs. DeThorne attempted to prop him up with pillows. Because the bed had no headboard, it was necessary to prop DeThorne up in the middle of the bed. However, the pillows kept sliding down and did not provide DeThorne with adequate support. At one point he stated, "I don't think I'm going to be able to make it." Smith got several magazines and put the will on it for him to sign. He asked, "Where do I sign?" and Smith indicated where he was to sign. She testified that the pillows started to slide and the pen slid out of DeThorne's hand and was returned to him. She testified: "I think I picked it up and handed it to him and he started to sign again." Then, "things started moving again." She then supported his wrist. She was asked the *397following questions and gave the following answers as to what happened next:
Q Could you feel his hand as the signature was being made?
A Yes. He was moving his hand.
Q Who was moving his hand?
A Robert was moving his hand. I was providing the support because the magazines were soft and the pillows were sliding. That was all my intention, was to provide the support. He was in a very awkward and uncomfortable position when he made that signature.
There was no reason for the circuit court to disbelieve this testimony and, in fact, the circuit court did not find that this testimony was not credible. Smith's testimony shows that DeThome's hand was not an inanimate object. He was at least attempting to sign his will.
The majority relies on part of Mrs. DeThome's deposition testimony where she deposed: "Diana Smith helped him to guide the pen." However, Mrs. DeThome's complete answer included the following: "He was lying down propped up, not really sitting up too much." Mrs. DeThome's testimony is not inconsistent with Smith's testimony. Smith did assist DeThorne in signing his will — she supported his wrist. This is a far cry from the Komarr situation where the testatrix's hand was an inanimate object which had no capacity to sign.
The majority relies on the testimony of a document examiner that DeThome's signature was written with some assistance from another writer. Majority op. at 391. However, the examiner was asked the following question and gave the following answer:
*398Q Did you form an opinion as to the nature of the assistance which was given? . . . THE WITNESS: No.
The director of research and investigation with the Milwaukee Police Department, who had formerly been the chief document examiner for the department, testified that, because of the poor quality of DeThorne’s signature, "one could only speculate as to all [the] different inferences on how or what assistance or non-assistance was given."
In fact, the proof that DeThorne executed his will lies in the signature itself. The following is his signature as it appears on his will:
[[Image here]]
Robert DeThorne (SEAL)
A. Robert DeThorne
I conclude that it is inconceivable that anyone could have guided DeThorne's hand in making this signature. This is not the signature of a healthy person with a firm hand. This is the signature of a dying man. However, the fact that DeThorne was so weak that his resulting signature is almost illegible does not make the signature any less his. Because I conclude that DeThorne's signature on his will complies with sec. 853.03, Stats., I respectfully dissent.