Maryland Estates and Trusts Article § 4-101 provides that: “Any person may make a will if he is 18 years of age or older, and legally competent to make a will.” This definition does not specific what constitutes legal competency. Maryland, like most states, follows the common law rule to determine legal testamentary capacity:
“Whether a testator had sufficient mental capacity is determined by a consideration of his external acts and appearances. It must appear that at the time of making the Will he had a full understanding of the nature of the business in which he was engaged; a recollection of the property of which he intended to dispose and the persons to whom he meant to give it, and the relative claims of the different persons who were or should have been the objects of his bounty.”
Philip L. Sykes, Contest of Wills in Maryland § 61 (1941), quoted in Sellers v. Qualls, 206 Md. 58, 66, 110 A.2d 73 (1954). Prior to the revision of the testamentary laws in 1969, Maryland statutory law stated that a person had testamentary capacity if such person was “of sound and disposing mind, and capable of making a valid deed or contract.” How Wills Shall be Made and Their Effect, Laws of Maryland, 288-89 (1796), available at www.mdacrchives.state.md.us. That language was changed by the Henderson Commission to the language now found in § 4-101 (“legally competent to make a will”). The Henderson Commission decided that Maryland had developed a substantial body of decisional law setting forth the elements of legal competency and placing the legal competency to make a contract and/or a gift is a higher standard than that to make a will. To restate the past language would have called into question that decisional language. This distinction is evident in various court decisions that have upheld wills when a deed and/or gift would have been set aside. See, e.g., Tyson v. Tyson, 37 Md. 567 (1873); Oliver v. Hays, 121 Md. App. 292, 708 A.2d 1140 (1998); Lee v. Lee, 337 So. 2d 713 (Miss. 1976); In Re Estate of Sorenson, 274 N.W.2d 694 (Wis. 1979). A similar policy consideration informs the different rules that have developed under Maryland law with respect to challenges of gifts and wills based on undue influence. If the recipient of the gift has a confidential relationship with the donor, the lifetime transfer shifts the burden to the donee to show the fairness and reasonableness of the transaction. Indeed, the donee must establish by “clear and convincing evidence” that there was no abuse of the confidence. Upman v. Clarke, 359 Md. 32, 753 A.2d 4 (2000). The rule regarding an attack on a will is very different. The fact of a confidential relationship simply is one element of the proof of the exercise of undue influence and does not shift the burden of proof. Id. The policy basis for the two different rules reflects the necessity of protecting individuals from access to their assets while living. After death, of course, this policy consideration no longer exists. By requiring that the testator be “legally competent to make a will” rather than being “capable of making a valid deed or contract,” the present Estates and Trusts Article accurately codifies decisional law of Maryland.  Evidence of the testator’s conduct and statements, declarations or conversations—before and after the execution of the will may be admissible to establish or dispute capacity if material and sufficiently near in time.  Grill v. O’Dell, 133 Md. 625, 106 A. 5 (1910); Dudderar v. Dudderar, 116 Md. 605, 82 A. 453 (1911); Collins v. Ecksteine, 164 Md. 696, 163 A. 698 (1933).