8.3 Credible Witnesses
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, 405 A.2d 250 (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, 79 A 600 (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 of 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.”
McGarvey, 286 Md. at 27-28.