September 25, 2017

Where There’s a Will There’s a Way?

On August 25, 2017, Maryland’s highest court, the Court of Appeals (the “Court”), visited issues arising from the statute providing for the valid execution, particularly attestation, of a Maryland will based on a statute that had remained largely unchanged since 1798. In Sadie M. Castruccio v. The Estate of Peter A. Castruccio et al., No. 79, September Term, 2016, (Opinion by Getty, J.) the Court held that an otherwise valid will is not invalid merely because the witnesses sign it on a different page than the person making the will, and the pages were not physically connected at the time of signing. Additionally, a particular form of attestation clause is not required to allow a presumption of proper execution of the will from attaching to it.

The Court recites the statutory requirements of a properly executed will: “every will shall be (1) in writing, (2) signed by the testator, or by some other person for him, in his presence and by his express direction, and (3) attested and signed by two or more credible witnesses in the presence of the testator.” Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”) § 4-102.”

Dr. Peter Castruccio made a will of six pages. The Court’s opinion focuses on the following recited facts:

Also on page 5 of 6 of the Will, below the “Residuary Clause” and Item 11, appears a concluding paragraph:

IN TESTIMONY WHEREOF, I, the above mentioned testator have hereunto set my hands and seals to this six page instrument, and have initial [sic] each page hereof, which instrument is intendant [sic] to be my Last Will and Testament, this 29th day of September, 2010.

(The date “29th” is handwritten above a blank line.) Contrary to this statement, none of the pages of the 2010 Will are initialed. Below this concluding paragraph, Peter signed his full name above the typewritten words “PETER ADALBERT CASTRUCCIO[.]” Below his signature are the words “SIGNED, SEALED, PUBLISHED AND DECLARE [sic], BY PETER ADALBERT CASTRUCCIO.” Another line down, the last two lines of page 5 of 6 read as follows: “The above named individual, does declare for his Last Will and Testament this instrument, have hereunto subscribed to have witness on the date last mentioned above, and at the location, and [. . . .]”

The first two lines of the next page of the Will, page 6 of 6, appear to be a continuation of the sentence that began on the previous page: “I do hereby attest that the testator to be of sound mind, fully able to understand this instrument, and the testator voluntarily and freely did sign same.”

The witnesses to the will signed on page six and provided their addresses. No other text appears on that page.

Dr. Castruccio’s wife, Sadie, was required by his will to survive him and to file a will with the Register of Wills prior to his death or his estate would pass not to her but to another. A footnote in the opinion points out his concern that Sadie might leave his estate to family members of whom he did not approve. Sadie survived but failed to file her will prior to his death and lower courts ruled in favor of Dr. Castruccio’s estate. Consequently, Sadie sought a caveat of her late husband’s will and lost before lower courts.

The Court sets forth a definition of an attestation clause, gleaned in large part from Black’s Law Dictionary. A presumption of proper execution of a will arises from the maker’s signature and an “attestation clause signed by the witnesses”.

However, it is noted that an attestation clause is not a requirement for a valid will, nor is it “required in order to establish the presumption of due execution.” Facts and circumstances may be provided to establish such a presumption. The opinion points out that an attestation requires some form of request of those witnessing the will to sign it, without a formal request, and that they need not be informed that they are signing a will. They also need not “see the testator sign the will”, but they must sign “in the presence of the testator”.

Sadie argued that attestation requires “that the witnesses must sign, either upon the same sheet as the signature of the testator, or on some sheet physically connected with it.” She asserted that since her late husband signed on page 5 of 6 of his Will, and the three witnesses signed on page 6 of 6, and those pages were not physically connected at the time of signing that there was no valid attestation.

The Court states that only one case in American jurisprudence addressed the issue raised by Sadie. In re Kaiser’s Estate, 34 N.W.2d 366 (Neb. 1948) involved a two page will which pages were not physically connected. That opinion held that there was no particular requirement stating where a will had to be attested and subscribed by witnesses; forbidding separate sheets in making the same; or directing the manner in which the pages were to be connected. The Nebraska court upheld the validity of the will based upon its “internal sense” and also identified by the witnesses as “connected parts”.

The Court embraced the Kaiser decision citing a desire to emphasize “the effectuation of the testator’s intent over strict compliance with the statutory formalities”. Therefore, it was unwilling to “impose formalities beyond those specifically required by statute…” As the Court’s opinion states:

For all of these reasons, we conclude that attestation does not require the witnesses to sign on the same page as the testator, or on physically connected pages. Instead, attestation requires (1) that two or more credible witnesses sign the will in the presence of the testator, and (2) that the witnesses either observe the testator sign the will, or that the testator acknowledges his signature on the document or acknowledges that the document is his will.

As a lesser issue, the Court dismisses the fact that while the attestation clause recites the initialing of each page, an untrue statement from the facts recited, such inconsistency was not sufficient to invalidate the attestation clause.

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