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Sign the Will Right the First Time; There May Not Be a Next Time

People signing Wills often wonder why the lawyer insists they come to the office to observe archaic-seeming formalities of execution, rather than just let them sign at home. A recent court decision, rejecting an amendment to a Will for failure of witnessing formalities, answers the question.

For a Will to be admitted to probate estate administration and carried out, Maryland law requires that the document be in writing, signed by the testator (i.e., the person disposing of his worldly goods under the Will) and attested and signed by two or more witnesses in the presence of the testator. Last August, the Maryland Court of Special Appeals affirmed what it means for the witnesses to a Will to be “in the presence of the testator.” For one thing, a witness signing while somewhere in the general vicinity of the testator was not good enough.

In this case, the testator was attempting to execute a Codicil – an instrument that amends a Will – for the purpose of leaving his company stock to someone other than the beneficiaries stated in the initial Will. One of the witnesses to the Codicil was the new beneficiary of the bequest of the stock. He went to the testator’s house and sat with the testator while the testator signed the Codicil and while witnessing it himself.

Mindful of the requirement of a second witness, the testator invited his niece two weeks later to come over to the house to complete the task. She signed. But did she sign in the den where the testator was sitting at his desk? Or did she walk into the kitchen alone to find the Codicil and sign it there? It was on this issue that the disposition of the testator’s stock would turn.

At the hearing, the second witness said she could not remember where she signed the Codicil, whether in the den or the kitchen. That being the case, the court determined that such uncertainty meant she did not sign “in the presence of the testator” as required by Maryland statute, and therefore the Codicil was not admitted to probate and the new beneficiary named in the Codicil did not inherit the stock.

Citing prior cases, the court explained why the apparent intention of the testator and the second witness signing in some undetermined part of the house was insufficient to create a presumption that the Codicil was duly executed. Initially, the burden lies with the proponent of a document – here, the new beneficiary under the Codicil – to make a prima facie case of due execution of the document by a majority of the evidence. Only then does the burden shift to the opponent of the document – here, the beneficiaries under the initial Will – to prove by the higher standard of “clear and convincing” evidence that the document is invalid.

In this case, the beneficiary of the Codicil failed in the first step. The inability of the second witness to recall where she signed the Codicil, and therefore whether she had signed “in the presence of the testator”, prevented any prima facie case for due execution. Further, the court declined to expand the definition of “in the presence of” to cover being in the same house at the same time. Rather, the court affirmed the “line of sight” test that someone witnessing a document must be within the range of the testator’s vision, though it does not matter whether the testator’s gaze actually rests upon the witness at the moment of signing.

The Codicil’s validity was further undermined by the uncertainty as to whether the two people signing it with the testator were, in fact, witnesses. The Codicil signature lines lacked the standard reference to “witness” or “witnessed by” to describe the capacity in which the others were signing.

The reason for these and other formalities in executing Wills and Codicils is to safeguard against the possibility of fraud, such as might occur if someone were to witness a document that a testator may have signed in draft but intended to revise later.

Bearing in mind the cautionary tale of the witness who may have witnessed at a room’s remove, anyone thinking of signing a Will might consider humoring the fussy lawyer who insists on a signing sit-down with testator and witnesses all present. 

For more information please contact Jay Merwin at 410-583-2400 or merwin@bowie-jensen.com.

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