8.1 In General
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, 356 A.2d 548 (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, 455 A.2d 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, 87 A. 802 (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, 500 A.2d 1031 (1985) (holding that there is no requirement of “publication”); see also Slack v. Truitt, 368 Md. 2, 14, 791 A.2d 129 (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, 39 A.2d 752 (1944); West v. Fidelity-Baltimore Nat’l Bank, 219 Md. 258, 147 A.2d 859 (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 the individual 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, 298 A.2d 862 (2002). Merely asking the witnesses to attest to a will, without telling the witnesses that the document is a will, is sufficient.