The law of Wills is fairly strict about using copies instead of original Wills for Maryland probate. Wills are considered “ambulatory,” meaning they only can operate after death and are liable to be changed or revoked at any time before the death of the testator while competent. The importance of producing the original Will at death is because one way to revoke a Will is for its maker to destroy it. Generally, the original Will, not a copy, must be found and filed to be valid. Unlike other important documents, the original Will has a unique importance, and using a copy requires special steps to have a copy accepted for probate.
What If Only a Copy of The Will Can Be Found? The Presumption of Revocation
If the original Will cannot be located at a decedent’s death, it can be challenging to have a copy be used instead. There may be many explanations for why the original is missing. Years ago, a Maryland trial lawyer gave the following as his definition of intestacy (dying without a valid Will): “Intestacy is when the heir who finds the Will is not named therein.” There may be, however, more innocent explanations. The reason for the importance of locating the “original” Will is due to how easily Wills can be revoked.
The Ways to Revoke a Will
Wills may be revoked “by burning, canceling, tearing, or obliterating the will, by the testator, or by some other person in the testator’s presence and by the testator’s express direction and consent”. Md. Code, Estates and Trusts, § 4-105 (b)(2). Consequently, if the original Will cannot be located, it is presumed destroyed by the testator. This presumption, however, can be rebutted. Tilghman v. Bounds, 214 Md. 533 (1957).
The Validation of Will Copies Under Maryland Common Law
Under the Maryland common law, copies of missing Wills would be offered for probate by petition to the appropriate Orphans’ Court for an evidentiary hearing. Those objecting could file a caveat based on its deficiency. As a result of the Henderson Commission report[1], the common law procedure was codified in 1969. Accordingly, the Maryland statute provides: “A proceeding for judicial probate shall be instituted … (5) If it is alleged that a will is lost or destroyed.” Md. Code, Estates and Trusts § 5-402 (5). This is a direct codification of earlier practice.
A Subsequent Statute Sows Confusion
In 2009, the General Assembly revised the procedure to follow to introduce a Will copy for probate. The new statute established an expedited process by which the Orphans’ Court can direct the Register of Wills to accept a copy of a will for probate without a hearing. Md. Code, Estates and Trusts §§ 5-801-04. The Court of Special Appeals examined whether the new procedure superseded the earlier statute or merely augmented it. Holt v. Ellis, 2022 WL 3136619 (8/5/22) (unreported) (Judge Kehoe).
The 2009 statutory scheme provided that a petition for the admission of a copy of a Will may be filed if (1) the original Will is alleged to be lost or destroyed, (2) a duplicate of the original Will is introduced showing the testator’s signature and that of the two witnesses, and (3) “all the heirs at law and legatees named in the offered will execute a consent…” Md. Code, Estates and Trusts, § 5-802. One heir refused to consent to the use of the copy. That heir argued that, without his consent, the copy could not be effective under the plain meaning of the statute. Accordingly, any evidence explaining that the original was not revoked by the testator was immaterial. In other words, the dissenting heir claimed that the 2009 statute supplanted, and therefore repealed, the earlier procedure to use a Will copy.
The 2009 Statute Only Added an Alternative Procedure
The objecting heir won in both the Orphans’ Court and the Circuit Court of Prince Georges County. The Court of Special Appeals reversed. Its decision was based on settled rules of statutory interpretation. The general rule of statutory interpretation is to look beyond a strict application of the plain meaning rule and view the statute in the context of the legislative intent. Legislative intent can be determined, of course, from its history but also from the context of the statute within the overall statutory scheme. Quoting from Doughtry v. Nagel, 248 Md. App. 549, 613 n. 9, Judge Kehoe wrote that: “This practice is based on the recognition that ‘some statutes that might initially appear to be unambiguous are, in fact, ambiguous when considered in the context of the statute as a whole, the broader statutory scheme, or the apparent purpose, aim or policy of the Legislature in enacting the statute.’”
The Holt court determined that the 2009 statute was meant only to add a simplified process of admitting a copy to probate when all interested legatees and heirs consent. It was not intended to preclude the admission of a copy where sufficient evidence that the testator did not intend to revoke the Will. In other words, the 2009 statute was not meant to reverse settled practice but only create an additional method of accepting a copy if all interested heirs consented to the copy. Regrettably, this is not a reported decision which means it is not precedent so that the same argument may arise again.
[1] The second Report of Governor’s Commission to Review and Revise the Testamentary Laws of Maryland (1968), commonly referred to as the “Henderson Commission,” was established in 1965 by Governor Tawes pursuant to a joint resolution of both Houses of the General Assembly of Maryland. It was tasked with reviewing and updating the Maryland testamentary law.
