The Court of Appeals recently upheld the Circuit Court for Anne Arundel County (Judge Dennis Sweeney specially assigned) which granted summary judgment in a caveat case. (Castruccio v. Est. of Castruccio, ____ A.3d _____ (August 2017). [Full disclosure: we briefed and participated in oral argument for one of the winning appellees and, indeed, represented this appellee/legatee throughout the litigation. This litigation is ongoing.]
The caveator challenged the will on every possible front, and after every other basis failed, she claimed that the witnesses to the will had to sign the same sheet of paper that the testator signed, or a sheet of paper physically attached to the page with the testator’s signature. If this is indeed Maryland law, a lot of existing wills are probably in jeopardy.
The caveator’s argument was based on a 1921 case that involved a one page will with the purported witnesses signing on the outside of an envelope containing the one page will. The Court of Appeals held that such a rule could not, and should not, be extended to apply to the signature pages of a multi-page will.
The court decision begins by reciting the statutory requirements for valid will execution. These requirements have remained virtually unchanged since 1798. The basic rule is that the testator must sign, and two witnesses must each sign in the presence of the testator. In the Castruccio case, there was an attestation clause above the witnesses’ signatures that, although not perfectly crafted, would be sufficient to trigger the presumption that the will was validly executed. Once this presumption is triggered the caveator must carry the burden of showing by clear and convincing evidence that the facts in the attestation clause are untrue. In the Castruccio case, whether or not the attestation clause was properly crafted was irrelevant given the testimony of the surrounding circumstances of the due execution of the will.
The thrust of the Court of Appeals case had to do with the proposition that the witnesses must sign on the same sheet of paper as the testator or on a sheet physically attached to it. The Court of Appeals supported the common-sense rule stated by Judge Sweeney in the Circuit Court decision that “the focus should be on a more holistic inquiry about whether the document purporting to be the will holds together as the unitary document completed by the testator and signed by the witnesses rather than an inquiry that at a certain point some or all of the pages were mechanically affixed to each other.” Castruccio v. Estate of Castruccio, Case No. 02-C-13-181345 at 11 (Cir. Sept. 23, 2014). The Court of Appeals in Castruccio did not break new ground but, instead, embraced the settled law in Maryland and elsewhere dating back hundreds of years.
This case serves as a reminder that lawyers should use best practices when overseeing the execution of a will, including using care in drafting attestation clauses. However, there is no blanket requirement that the pages of a Will be mechanically attached or fastened together at the time of execution.