There are statutory requirements to create a valid Will. In Maryland, those requirements, called “formalities,” must be present or the Will is not valid and will not operate. Generally, a valid Will must be (i) in writing, (ii) signed by the testator (or by someone in the testator’s presence by the testator’s express direction), and (iii) “attested and signed” by 2 witnesses in the testator’s physical or, following certain requirements, in the testator’s electronic presence. Md. Code, Estates and Trusts, § 4-102.

The Usefulness of an Attestation Clause

An important clause that Maryland estate and trust lawyers should include in every Will that they create is the attestation clause. Although not a requirement to create a valid Will in Maryland, an attestation clause is quite useful if a Will is challenged. This clause recites that the statutory requirements have been followed and it is attested to by the witnesses. It does not, of course, address other grounds for a Will challenge such as lack of capacity, the exercise of undue influence, or the testator suffering from insane delusions. It goes a long way, however, of establishing that the formalities were followed.

What is an Attestation Clause?

“Attested” simply means that the witnesses vouch for knowing that the statutory formalities were followed.  An example of an attestation clause is as follows: ‘This instrument was signed by the testatrix as her Last Will and Testament in our joint presence, and at her request we have signed our names as witnesses in her presence and in the presence of each other on the date written above.”

Attestation Clauses are Not Useless Boilerplate

Although often considered a mere boilerplate, the real importance of the attestation clause is evidentiary. The party seeking to probate a Will bears the threshold burden of establishing that it meets the statutory requirement necessary for a valid Will. A proper attestation clause, although not a requirement of a valid Will, is prima facie evidence of due execution. A “proper” attestation clause is one reciting all the required formalities. Once the presumption of due execution attaches, the burden of proof shifts and the caveator must overcome the presumption with clear and convincing evidence. Van Meter v. Van Meter, 183 Md. 614, 617-18 (1944).

The Steiner Case

In a recent Court of Special Appeals case, Estate of Steiner, __ Md.App. __ , 2022 WL 2977095 (7/28/22), Judge Meredith explored what would likewise create a prima facie proof of due execution in the absence of a complete attestation clause and in the absence of any witness testimony. The importance of the Steiner case is that it applied the evidentiary consequences of an attestation clause when that clause was imperfect.

The Facts of Steiner

In Steiner, there was a Will and a codicil.  Ms. Steiner was being treated for metastatic cancer when she executed both documents.  The codicil was executed four months after the Will. She died less than three months after the execution of the codicil.

Both the Will and the codicil were do-it-yourself jobs.  The Will was created by the testatrix using a typed “” form.  The Will left her only child, the caveator, a bequest of a life estate in her real property, $15,000 cash from a safe deposit box, and half of her residuary estate.  Other property, including the other half of the residuary estate, went to the testatrix’s granddaughter.  The granddaughter was the caveator’s daughter and a personal representative of Ms. Steiner’s estate under her Will.

The codicil was handwritten in block letters on two sheets of notepaper which revoked the life estate rights to her son, eliminated the $15,000 cash bequest, and removed the son as a recipient of half of the residuary.  On the second page of the codicil following the various changes to her Will were the words:  “In Witness Whereof, I have subscribed my name below, this 5th day of June, 2020.”  Below this clause was a signature line entitled “Testator’s Signature” and two  signature lines thereafter entitled “Witness Signature.”  Each of those lines contained respectively the testatrix’s signature and the signatures of the purported witnesses.

The Challenge of the Codicil

Ms. Steiner’s son challenged the codicil but not the Will stating that by the time the codicil was executed his mother was not mentally competent or coherent.  He also claimed fraud based on the allegation that he did not believe that she was physically present when the two witnesses signed the codicil.

The Steiner Court recited the long-standing common law rule that a party seeking to probate a Will or codicil bears the threshold burden of proving the existence of the statutory requirements that: (i) the Will be in writing, (ii) the Will be signed by the testator, and (iii) be attested and signed by two or more credible witnesses in the physical presence of the testator.[1]

The Shifting of the Burden of Proof

It is well established that an attestation clause shifts the burden to the caveator. This is because the attestation clause recites that each of the elements required for valid execution of the Will was followed. Van Meter v. Van Meter, at 617-18: “The rule is well established that an attestation clause reciting facts necessary for the valid execution of a will is prima facie evidence of the due execution of the will, if it bears the genuine signatures of the testator and subscribing witnesses.” The attestation clause substitutes as presumptive evidence of the witnesses and serves “as a safeguard against the danger of imperfect recollection or deliberate misrepresentation of the facts.”) Id.

The Relaxing of Attestation Clause Requirements

Although the Van Meter court conditioned the presumption of due execution on a detailed attestation clause, the Court of Appeals, over time, has adopted a more relaxed approach. In Slack v. Truitt, 368 Md. 2 (2002), the testator handwrote a one-page Will and handed it separately to two witnesses to sign. The first witness to sign it testified that she could not recollect whether when presented to her, the testator had already signed the document. The second witness who was approached later testified that it was signed by the testator when he presented it to her. Both are signed beneath the words “Witnessed By.” In Slack, both witnesses testified that the testator had them witness the document separately but in his presence. The Court determined that a presumption of due execution was attached to the Will. Slack, at 17-18: “The will was found in testator’s home after his death, duly signed and witnessed; this shows that the testator thought it was a valid will… Accordingly, we hold that there is not clear and convincing evidence to overcome the presumption of due execution that attaches to the will, and, therefore, the will was entitled to probate as a validly executed will.”

In Castruccio v. Estate of Castruccio, 456 Md. 1 (2017)[2], the Court found the presumption of due execution with an “admittedly imperfect” attestation clause that failed to recite all the elements necessary for valid execution. The Castruccio Court found that there was sufficient evidence from the Will itself and from the “surrounding circumstances” to trigger the presumption. In this case, as with Slack, the testimony of the witnesses testified that they saw the testator sign the document. The caveator’s primary complaint, however, was that the witnesses’ signatures did not appear on the same page as that of the testator and that there was conflicting evidence of whether that page was attached to the Will. The Court found this was not a requirement of valid execution: “Regardless of whether the last two pages (or any of the pages, for that matter) were physically connected, it is clear from “the papers themselves” that they were intended to form a single document constituting the 2010 Will. at the attestation clause and witness signatures need not be on the same page as that of the testator or attached to the Will.”

The Further Extension of the Common Law by Steiner

The Steiner Court addressed a case with no corroborating testimony and an imperfect attestation clause. It held that the mere fact that the codicil appeared to be a testamentary document and that it evidenced the testatrix’s signature and the witnesses to the document would be sufficient to shift the burden of proof.  In Steiner, the Court extended the Slack and Castruccio holdings:

Nor did the lack of corroborating testimony from the two subscribing witnesses preclude the presumption of due execution from attaching to the Codicil.  Although this case differs in that regard from Slack and Castruccio, where attesting witnesses testify, the Court of Appeals has recognized that, even when attesting “witnesses are unable to testify or recollect, it is proper to apply the presumption of due execution” because “if subscribing witnesses were required to recollect all the formalities prescribed by the statutory requirements, few Wills would be immune from attack, particularly after the passage of many years.”

Thus, even with a lack of corroborating testimony, the codicil established a prima facie case that all the statutory requirements for executing a testamentary instrument were satisfied.  The Steiner Court held that the caveator did not put forward sufficient evidence to rebut the presumption.  In Steiner, for example, no medical professional testimony was introduced and no direct evidence of incapacity on the date of the signing of the codicil appeared. Steiner is the logical extension of Slack and Castruccio.

The Estate & Trust Lawyers of Franke Beckett, LLC

For over 35 years, our law firm has concentrated on the law of estates and trusts – including a wide variety of estate planning challenges brought about by complex family circumstances or the constant tax law and regulatory changes. The lawyers of our firm, Franke Beckett LLC, however, engage in estate planning and Will and Trust drafting 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. Our broad experience within our practice niche gives us a deep understanding of the field. [One of the cases relied upon by the Steiner Court, for example, was a case we won in the Maryland Court of Appeals to uphold the validity of a Will which was not created by our law firm and which had an imperfect attestation clause.] 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] Effective 2022, the requirement that the witnesses be in the physical presence of the testator was statutorily changed in Maryland to permit witnesses to be in the virtual presence of the testator using audio and visual remote technology. The statute sets out specific procedures that must be followed if remote witnesses are being used. See Md. Code, Est. & Trusts § 4-102 (c), (d), and (e) .

[2] Castruccio was argued and won by our law firm. We did not, however, have any role in creating the Will under dispute which Will was done years before our involvement as fiduciary litigators. Although the attestation clause was flawed, other factors triggered the presumption which was instrumental in having the Will upheld.