Will Creation and Modification in Maryland Using Remotely Witnessed and Electronic Wills
For a valid Will to be created in Maryland, 2 witnesses to the Will had to be in the physical presence of the testator when they signed as witnesses. This is no longer the case. Now, if certain requirements are met, those witnesses can be in the “electronic” presence of the testator. This is a dramatic change from settled Maryland law.
For centuries, Wills would not be valid unless the witnesses were in-person physically with the person making the Will. Initially by emergency executive orders in response to Covid, now made permanent by legislation, these rules have changed in Maryland to recognize that technology permits people to be in each other’s virtual, electronic presence. Valid Wills can be prepared and executed using technology bringing people together remotely via audio and visual technology.
The Historic Requirements for Witnesses
Since at least 1798, witnesses of a Will were required to be in the physical presence of the testator or testatrix for a Maryland Will to be valid.[1] Until recently, the basic rules governing Maryland Will creation remained consistent with the rules established centuries ago. Castruccio v. Estate of Castruccio, 450 Md. 1, 7 (2017) (“In fact, the statutory requirements for the valid execution of a will have remained virtually unchanged in Maryland for over two hundred years.”)[2]
The Covid epidemic brought about a significant change. Under emergency Orders issued by Maryland Governor Larry Hogan that were in effect only during the height of the Covid epidemic, the requirement that witnesses must be in the physical presence of the testator was loosened to permit witnesses to “appear” remotely. This meant that our estate planning clients could, and did[3], execute valid Wills via video and audio links from their homes while maintaining maximum social distancing. Although the emergency orders have lapsed, this now has become part of the statutory law of Maryland.
The Required Will Formalities
Maryland statutory law establishes basic requirements, or “formalities,” to create a valid Will. Maryland’s version of the Wills Act sets out the formalities required to create or modify a valid Will. Generally, there are 3 requirements: (i) the Will must be in writing, (ii) it must be signed by the testator, “or by some other person for the testator, in the testator’s physical presence and by the testator’s express direction,” and (iii) it must be “attested and signed by two or more credible witnesses.” MD Code, Estates and Trusts, § 4-102 (b). For hundreds of years, the attesting witnesses had to be in the physical presence of the testator or the Will is invalid. As of April 2022, the witnesses can be in the “electronic presence of the testator” under certain proscribed circumstances.
What Does Witness Attestation of a Will Mean?
Many Wills contain attestation clauses above where witnesses sign. These clauses generally recite that the requirements of the Wills Act were met, including that the witnesses signed in the presence of the testator after the testator signed. Attestation clauses are important because it is prima facie evidence of the facts recited and any challenger must show by clear and convincing evidence that the facts stated therein are not true. Van Meter v. Van Meter, 183 Md. 614 (1944). Thus, attestation clauses are a best practice.
Formal attestation clauses, however, are not an essential part of a Will. Id. Two witnesses signing followed by the word “witness” has been held sufficient to establish its due execution. This is true despite one of the witnesses not recalling if the testator had signed the Will before the witness signed it. Slack v. Truitt, 368 Md. 2 (2002) (“The inability of a witness to remember the facts surrounding the execution of the instrument is insufficient to overcome the presumption of due execution.”).
Although attestation means the witnesses are attesting compliance with the various Will execution formalities, much is assumed by the mere presence of the signatures of two people as witnesses. The lack of two witnesses, however, is fatal to the creation of a valid Maryland Will.
Will Execution Remotely Witnessed
Revised MD. Code, Estates and Trusts, § 4-102 permits various ways to create a valid Maryland Will while using remote witnesses. An effective Maryland Will may be created without a notary by having a supervising attorney certify that certain procedures were followed. If that mode of execution is followed, four people must be within the electronic presence of each other: the testator, the 2 witnesses, and the supervising attorney. The testator must declare that the document is his or her Will which is not an obligation under existing Maryland common law. Casson v. Swogell, 304 Md. 641 (1985). The testator must also that he/she is executing the Will willingly and under no constraint or undue influence and that the testator requests the witnesses to sign the Will as witnesses. These declarations serve to mimic, albeit more pointedly, the attestation function. The supervising attorney then certifies as to the process followed during the remote Will execution, including the statements made by the testator and assembles the counterpart Will copy signed by the witnesses. The entire package becomes the valid Maryland Will. The other way to effectuate a valid remotely executed Will is to use a notary to certify as to compliance with the process. Until a non-emergency statute governing remote notarization becomes effective October 1, 2022, this avenue is highly problematic.
The Usefulness of Remotely Witnessed Wills
Although remotely witnessed Wills arose as a response to the Covid epidemic, its usefulness transcends using it for estate planning in a national crisis. In general, our response to Covid was to be able to seamlessly function as a “virtual” law firm – where geography is less of a barrier for our clients. In at least two situations this new tool will be particularly useful:
- Although our physical office is in Annapolis, our clients are not defined by geography. The organizing principle of our firm is a deep knowledge and experience in the law of fiduciaries, closely held business succession planning, and estates and trusts. We handle a broad array of matters within our practice niche. The need for these legal services is not defined by where a client may live or work. Historically we have had clients from most of central Maryland, and occasionally from the western counties. Our clients and/or their advisors seek us out to address matters of great importance to them. Our ability to render estate planning services remotely will make the delivery of legal services to those clients more convenient.
- We are all prone, to some degree, to procrastination. It is not uncommon for clients to want to tweak their Wills, Trusts, and other estate planning documents prior to a trip. This often is jammed in as a last-minute task along with other important pre-trip tasks, our virtual law firm capabilities permit us to work with clients to create or modify Wills, Trusts, and other important planning documents without the client needing to add a trip to our office as an additional obligation.
Our Continuing Commitment to First Rate Delivery of Client Services
The remote witnessing legislation is one more tool our firm will use to make the delivery of estates and trusts legal services more seamless for our clients. We will continue to use a mix of remote and in-person methods to deliver those client services. We will accommodate the wishes of our clients, to the degree possible, when structuring the “right” mix of virtual/in-person delivery of legal services.
For over 35 years, our law firm has concentrated on the law of estates and trusts – including creating, or modifying, Wills and Trusts. These estate planning documents are adopted to address our clients’ family circumstances such as planning to protect young children, creating special needs trusts for challenged children or adults, and planning to hedge against one’s own possible future disability. We also advise clients how to best handle the constant tax law and regulatory changes. The firm, Franke Beckett LLC engages in estate planning within the context of a larger estates and trusts practice of law. We engage in estate planning, closely held business succession planning, estate/trust administration, and a broad range of fiduciary litigation. Because of the range of our practice within a concentrated practice area, we develop a deep experience in, and knowledge of, the Maryland law of estates and trusts. To schedule a consultation with an experienced Maryland estates and trusts lawyer for planning, administration, or litigation, call 410-263-4876 or use the “contact” tab on our website for an appointment.
[1] Prior to the Revolutionary War and statehood, Maryland followed English law. The antecedent to the 1798 statute is the English Statute of Wills of 1540. So when our lawyers direct the creation of new Wills, or oversee modifications (“codicils”) to existing Wills, our Maryland lawyers were following a procedure deeply rooted in Maryland and English history.
[2] Our firm, Franke Beckett, LLC, argued the winning side of the Castruccio case.
[3] Under the Maryland Governor’s emergency order, our Will and Trust lawyers perfected techniques to enable clients to begin Will and Trust creation from start to finish, or modify existing estate plans. Almost 100 Franke Beckett clients availed themselves of this remote Will creation and execution during the pandemic.
