| Lecture 8 |
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8.0 Formalities of Wills Maryland Estates and Trusts Article provides, with two exceptions, that every will shall be (i) in writing, (ii) signed by the testator (or some other person for him, in his presence and by his express direction), and (iii) attested and signed by two or more credible witnesses in the presence of the testator. Md. Code Ann., Est. & Trusts § 4-102 (2006). The two exceptions are contained in § 4-103 (allowing holographic wills for certain individuals serving in the armed services to be upheld for a period of time) and § 4-104 (validating a will made outside of Maryland provided the will is in writing, signed by the testator and executed in conformance with the law of the domicile of the testator or the place where it was executed). See Nugent v. Wright, 277 Md. 614 (1976), for an example of a Maryland Court of Appeals case dealing with a holographic will from a state (here, Virginia) that recognizes holographic wills. Although it may be best practice to gather the testator and the witnesses in one room together in accord with traditional practice, that is not strictly necessary in Maryland. Maryland law, for example, does not require that witnesses to the will observe each other executing the will. In O'Neal v. Jennings, 53 Md. App. 604 (1983), the court upheld a will despite an attestation clause stating that the witnesses signed in the presence of each other when, in fact, they did not. The law is clear, however, that the witnesses must have attested and subscribed to the will in the presence of the testator. Tinnan v. Fitzpatrick, 120 Md. 342 (1913). Although it may be desirable for the testator to identify that it is a will to which he wants the witnesses to subscribe, it is not strictly necessary for the testator to identify the document. Casson v. Swogell, 304 Md. 641 (1985) (holding that there is no requirement of "publication"); see also Slack v. Truitt, 368 Md. 2, 14 (2001) (“[A] testator need not acknowledge a will or signature orally; acknowledgment can be accomplished by conduct alone.”). The use of an attestation clause (stating that the witnesses signed within the presence of the testator) provides prima facie evidence of due execution. VanMeter v. VanMeter, 183 Md. 614 (1944); West v. Fidelity-Baltimore Nat’l Bank, 219 Md. 258 (1959). The attestation clause, however, does not prevent a witness from testifying to facts contrary to those set out in the clause. Casson, 304 Md. 641. The meaning of "in his presence" (as required by § 4-102) has not been determined in a recorded opinion in Maryland. Generally, there are two interpretations of the presence requirement: 1) the line-of-vision test; and 2) the conscious-presence test. Under the line-of-vision test the testator needs to be able to watch the witness sign (regardless of whether the testator actually witnessed the signature). Under the conscious-presence test, the testator must be able to sense the presence or actions of another but need not actually be able to see the witness. The Restatement (Third) of Property adopts the conscious-presence test, recognizing that “a person can sense the presence or actions of another without seeing the other person.” Restatement (Third) of Prop.: Donative Transfers § 3.1 cmt. p. The Uniform Probate Code provides that a will must be "signed by at least two individuals, each of whom signed within a reasonable time after he (or she) witnessed either the signing of the will...or the testator's acknowledgment of that signature or acknowledgement of the will." Unif. Probate Code § 2-502(a)(3). Thus, the Uniform Probate Code no longer requires that the witnesses be in the presence of the testator; it requires only that the witness attests to the will "within a reasonable time" after the testator signed or acknowledged the signature. In Maryland the testator may direct another person to sign for him "in his presence and by his express direction." Md. Code Ann., Est. & Trusts § 4-102. This provision raises the line-of-vision test versus conscious-presence test concern. In this situation, the Restatement (Third) of Property rejects the line-of-vision test in favor of the conscious-presence test. § 3.1 cmt. n. The Uniform Probate Code explicitly states that the surrogate sign "in the testator's conscious presence." § 2-502(a)(2) (emphasis added). There is a strong presumption of due execution that attaches to a signed and witnessed will. Slack v. Truitt, 268 Md. 2 (2002). Merely asking the witnesses to attest to a will, without telling the witnesses that the document is a will, is sufficient. 8.2 Formalities of Will Substitutes In Maryland no statute imposes formalities to the execution of revocable trusts similar to those formalities that govern wills. Conversely, Florida statute states that the State will not recognize the validity of testamentary distribution from a revocable trust that lacks the formalities of a Florida will. Fla. Stat. § 689.05 (2006); see also Zuckerman v. Alter, 615 So. 2d 661, 663 (“In Florida, formalities for the conveyance of real property are similar to will execution formalities.”). Florida’s law can cause a problem for a revocable trust executed in Maryland without testamentary formality if the client becomes a resident of Florida later in life or is a resident of Florida under the income tax rules but maintains dual residency. Arguably, the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, would require Florida to uphold a Maryland revocable trust executed without formalities provided it was valid under Maryland law. However, lawyers are advised to adhere to those rules governing will executions when creating revocable trusts for clients who maintain property in Florida. New York State also requires will formalities or a notarized instrument for a valid revocable trust. See N.Y. Est. Powers & Trusts § 7-1.17 (Consol. 2006). Maryland law does not require revocable trusts to be notarized. However, it is general practice that such instruments are notarized to permit recordation among state land records if real estate is concerned. Under the common law, a credible witness was one competent to attest to the will at the time of the attestation. Certain individuals were not permitted to testify under the common law: those with an interest in the subject matter of the litigation, infants, insane persons, and those convicted of infamous crimes. See McGarvey v. McGarvey, 286 Md. 19, 25 (1979). Over time, the courts have loosened the requirements for the attesting witnesses to a will. In Shaffer v. Corbett, 3 H. & McH. 513 (1797) (discussed in McGarvey, 286 Md. at 22-23), the court sidestepped the prohibition against interested persons acting as witnesses. In that case the husband of a woman who was a devisee in the will signed as an attesting witness. The court made the distinction between whether the husband was competent to attest to the will at the time of the attestation as opposed to his competency at a trial in regards to proving the will. At the time of attestation, the wife had an unenforceable expectancy; therefore, there was no interest. At the time of the caveat proceeding, the husband and wife had disclaimed any interest in the will to permit the husband to testify. His competency as an attesting witness was not voided by the fact that the wife's interest rose to an enforceable interest (before disclaimer) by reason of the testator's death. Similarly, Leitch v. Leitch, 114 Md. 336 (1911), held that a beneficial devisee can also be an attesting witness to a will. Maryland law generally allows testimony from those persons with an interest in the matter in question and those who have committed a crime. See Md. Code Ann., Cts. & Jud. Proc. § 9-101 (2006); but see Md. Code Ann., Cts. & Jud. Proc. § 9-104 (2006) (prohibiting a convicted perjurer from testifying). In McGarvey, the court decided whether a person convicted of subornation of perjury would be prohibited from being an attesting witness. The court held that the disability of an attesting witness by reason of conviction of an infamous crime was imposed by common law and not by statute. This holding left the court free to declare the state of the common law. Thereupon, the court held that a criminal conviction, including perjury, would not bar someone from being an attesting witness: "We see no reason why a criminal conviction, including perjury, should automatically bar anyone in this State from performing the largely formal ritual of attestation. We, therefore, hold that the common-law rule which disqualifies one convicted an 'infamous' crime from attesting to wills, is no longer applicable in this state. Any other result would be a needless trap for the unwary testator who, by failing to discover an attesting witnesses' prior criminal record, risks having his will declared void."
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