Slack v. Truitt

¶1dissenting.

¶2I respectfully dissent.

¶3I differ from the majority in its definition of what constitutes sufficient proof of attestation or conversely, what standard of proof for lack of attestation must be met by the caveators to a document that does not bear an attestation clause, purporting to be a will under Section 4-102 of the Estates and Trusts Article of the Maryland Code (1974, 2001 Repl.Vol.). In so doing, I agree with the Orphans’ Court and the Circuit Court for Cecil County that the testator, who signed the will outside of the presence of the witnesses to the instrument, failed to acknowledge that the document was his own instrument when he asked the witnesses to sign it, thus rendering the will invalid under Maryland law.

¶4The majority opinion attempts to circumvent the issue of valid execution for a will, which does not bear an attestation clause and was signed by the testator outside of the presence of the witnesses, by attempting to overextend our prior holdings in McIntyre v. Saltysiak, 205 Md. 415, 109 A.2d 70 (1954) and Van Meter v. Van Meter, 183 Md. 614, 39 A.2d 752 (1944), and by heavy reliance on decisions from other jurisdictions in support of its holding that the burden of proof that the caveator had to overcome was by clear and convincing evidence, and that the caveator failed to meet the burden.1 For *20the reasons set forth below, I find that the presumption of valid execution which attaches to a will containing an attestation clause followed by the genuine signatures of the testator and witnesses is inapplicable to wills which do not contain attestation clauses. As such, I find that the clear and convincing standard of proof used by the majority to test the cave-ator’s case is not applicable to the facts of this case.

¶5Section 4-102 of the Estates and Trusts Article provides:

Except as provided in §§ 4-103 and 4-104, 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.

¶6To attest to something means “[t]o bear witness” or “[t]o affirm to be true or genuine; to authenticate by signing as a witness.” Black’s Law Dictionary (7th ed.1999) at 124. An *21attestation clause simply sets forth in writing that the formalities of Section 4-102 have been met.

¶7Section 4-102 of the Estates and Trusts Article does not formally require the presence of an attestation clause in order to validate the will. See Van Meter, 183 Md. at 617, 39 A.2d at 754. A will which does not contain an attestation clause, however, cannot be entitled to the same presumption of validity as one which does, because the evidentiary weight in favor of valid execution provided by the attestation clause is not present. In the absence of an attestation clause giving rise to a rebuttable presumption of validity, the court must examine the facts of the case in light of the statutory requirements for due execution as set forth in Section 4-102 of the Estates and Trusts Article in order to assess whether the will should properly be admitted to probate. See Shane v. Wooley, 138 Md. 75, 80, 113 A. 652, 654 (1921)(“The validity of a will, under all the authorities, is made to depend upon the instrument being properly attested and subscribed by two or more credible witnesses as provided by the statute, and unless the statute is complied with in this respect, the devises and bequests are, in the language of the statute, ‘utterly void and of none effect.’ ”)

¶8As a part of our consideration of whether the statutory formalities have been observed in cases where the document does not contain an attestation clause and where the testator signed the document outside of the presence of the witnesses, we must consider whether the testator complied with what has become known as “the acknowledgment rule.” See Van Meter, 183 Md. at 617, 39 A.2d at 754 (clearly stating that, although the statute which is now Section 4-102 does not require the testator to sign the will in the physical presence of the two witnesses, where the testator elects to sign “out of the presence of one or more of the witnesses, it is essential that he should in some way acknoivledge it to them as his act ”)(emphasis added). The acknowledgment rule was set forth in an early British case as follows:

It has been held in so many cases that it must now be taken to be settled law, that it is unnecessary for the testator *22actually to sign the will in the presence of the three •witnesses who subscribe the same; but that any acknowledgment before the witnesses that it is his signature, or any declaration before them that it is his will, is equivalent to an actual signature in their presence, and makes the attestation and subscription of the witnesses complete.

¶9White v. Trustees of the British Museum, 6 Bing. 310, 318 (1829); see 2 William Blackstone, Commentaries *377 (“It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times.”)

¶10In Casson v. Swogell, 304 Md. 641, 500 A.2d 1031 (1985), this Court stated, “[t]o fulfill the requirement that a testator request a witness sign a document it is not necessary that the witness know it is a will.” Casson, 304 Md. at 654, 500 A.2d at 1038. Thus, we held, “publication is not required for the valid execution and attestation of a will, but that publication may be shown as an alternative method of proving the proper execution of a will when the testator signed outside the presence of the uñtnesses.” Id. at 643, 500 A.2d at 1032 (emphasis added). The facts of Casson, where the testator signed the document in the presence of the witnesses, are clearly distinguishable from the case at bar, where the testator signed outside of the presence of the witnesses. See id. at 656, 500 A.2d at 1038-39 (discussing Woodstock College v. Hankey, 129 Md. 675, 680-81, 99 A. 962, 964 (1917)). This Court in Casson, nevertheless, clearly recognized that the testator must either declare the instrument to be his own or acknowledge his signature to the witnesses when he signs outside of their presence'. This Court’s holding in Casson, thereby, was not designed to abrogate the long-standing application of the acknowledgment rule, whereby a testator who signs a will outside of the presence of the attesting witnesses must acknowledge his signature on the document and declare the document to be his own. See Casson, 304 Md. at 656, 500 A.2d at 1039 (stating, “[t]he acknowledgment rule applies only when the testator has signed the instrument out of the presence of the witnesses”).

¶11*23The majority correctly states that an attestation clause followed by the signatures of two witnesses to the execution of a will raises a rebuttable presumption that the will was executed in compliance with Maryland Code (1974, 2001 Repl. Vol.), Section 4-102 of the Estates and Trusts Article. Maj. Op. at 5; see McIntyre, 205 Md. at 420-21, 109 A.2d at 72; Goroum v. Rynarzewski, 89 Md.App. 676, 682-83, 599 A.2d 843, 847 (1991). Therefore, in cases where the purported will contains an attestation clause, “the burden of proof is upon the caveator to show by clear and convincing evidence that the facts therein stated are not true.” Van Meter, 183 Md. at 618, 39 A.2d at 754. We have defined the clear and convincing evidence standard of proof as being greater than a preponderance of the evidence and less onerous than evidence beyond a reasonable doubt. See 1986 Mercedes Benz 560 CE v. State, 334 Md. 264, 283, 638 A.2d 1164, 1173 (1994).

¶12While we have explained that an individual contesting the validity of a will containing an attestation clause must demonstrate by clear and convincing evidence that the facts contained in the will are not true, see McIntyre, 205 Md. at 421, 109 A.2d at 72, such a high burden of proof is not required to contest the validity of a document purporting to be a will which does not contain an attestation clause. Cf. Krouse v. Krouse, 94 Md.App. 369, 380-81, 617 A.2d 1098, 1104 (1993) (holding that the standard of proof for fraud in will caveat cases is a preponderance of the evidence, even though civil fraud ordinarily requires a higher burden of clear and convincing evidence).

¶13In support of its holding admitting Dale Slack’s will to probate, the majority emphasizes the genuineness of the testator’s and witnesses’ signatures. If proof of the genuineness of the signatures of the testator and the witnesses alone were deemed sufficient to establish the validity of the will, the statutory requirement that the will be “attested” would be rendered useless. See Md.Code, § 4-102 (requiring that a will be “attested, and signed by two or more credible witnesses in the presence of the testator”)(emphasis added). Therefore, in cases where the testator has signed a will which does not *24contain an attestation clause outside of the presence of the attesting witnesses, I believe that the practice more in keeping with our case law and the statutory requirements of Section 4-102 would be for the court to evaluate the totality of the circumstances surrounding the execution of the document in order to determine if the will should properly be admitted to probate. Thus, the caveator would have to prove by a preponderance of the evidence that the execution of the will did not meet the statutory requirements for valid execution as set forth in Section 4-102 of the Estates and Trusts Article. In so doing, proof of the genuineness of the signatures of the testator and the witnesses could be significant factors in determining the validity of the will, which may be overcome by a finding that the caveator has demonstrated by a preponderance of the evidence that the statutory requirements were not met.

¶14In the present circumstances, Dale Slack did not tell the people whose signatures appear on the will that they were “attesting” to his will. Rather, the first witness to sign the will, Dorothy Morgan, testified that Slack requested that she sign a paper for him. Morgan testified that she believed she was signing a neighborhood petition rather than a will belonging to Slack, and that she did not see his signature on the document when she signed it. As such, the circumstances indicate that Ms. Morgan could not have attested to the will as required by Section 4-102.

¶15The second witness, Sandra Bradley, testified that Slack hurriedly requested her signature on a “piece of paper.” Although Bradley did acknowledge that she saw Slack’s signature on the document, she testified that she neither knew the document to be of Slack’s creation, nor knew that it was a will. Bradley’s testimony regarding her recognizing Slack’s signature may be sufficient to validate the will, but the statute clearly states that attestation and signatures are required of “two or more credible witnesses” in order- to satisfy the elements of a valid will. Md.Code, § 4-102 of the Estates and Trusts Article.

¶16*25I believe that the Orphans’ Court and the Circuit Court for Cecil County appropriately weighed the evidence set forth by petitioner and quite reasonably concluded that the statutory requirements had not been met. For example, in denying the will’s admission to probate, the circuit court balanced the evidence put before it, stating, “[i]n applying equity to this situation, of course, the court cannot be ignorant of the very specific statutory law that applies in this case which I have already recited, as well as the interpretative cases rendered within the State and other jurisdictions recognized by the State, such as England’s law.” While it was not necessary for Mr. Slack to verbally instruct the witnesses that the paper he wished for them to sign was his will, the statute’s mandate that the will be attested and signed by two witnesses requires that, in the absence of signing the will in their presence, the testator must apprize the witnesses of the fact that they are attesting to the validity of the execution of the testator’s document, either through the testator’s conduct or through the contents of the instrument itself. See Van Meter, at 617, 89 A.2d at 754. Although Dale Slack’s document contained valid signatures of the testator and two witnesses, such proof is insufficient to countermand the evidence supplied by petitioner that the statutory formalities for valid execution of a will were not met. For the foregoing reasons, the Orphans’ Court and the Circuit Court for Cecil County properly declined to admit the will to probate. Accordingly, I would reverse the decision of the Court of Special Appeals.