Estate of Steiner ( 2022 )

In The Estate of Theresa Ruth Steiner, No. 757, September Term 2021. Opinion by
Meredith, Timothy E., J.
ESTATES AND TRUSTS – WILLS AND CODICILS – STATUTORY
REQUIREMENTS FOR PROPER EXECUTION – BURDEN OF PROOF. Section
4-102(b) of the Estates and Trusts Article of the Maryland Code provides that, with certain
exceptions, the proper execution of a will (or codicil) in Maryland requires that the will or
codicil be: in writing; signed by the testator (or by some other person for the testator, in the
testator’s physical presence and by the testator’s express direction); and attested and signed
in the physical presence of the testator by two or more credible witnesses. A “presumption
of due execution” attaches to a will or codicil if the witnesses subscribe to an attestation
clause that affirms compliance with these statutory requirements. But, even in the absence
of a proper attestation clause signed by the witnesses, the presumption of due execution
can also attach if a proponent of a testamentary document can adduce sufficient evidence,
either from the document itself, or from the surrounding circumstances, or a combination
of the document and surrounding circumstances, to persuade the court that there is a prima
facie case that the statutory requirements for the execution of a will have been satisfied. If
a presumption of due execution attaches to a will or codicil, then the opponent of the
testamentary document bears the burden of proving by clear and convincing evidence that
the statutory requirements for a valid will were not satisfied.
Circuit Court for Garrett County
Case No. C-11-CV-21-7
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 757
September Term, 2021
______________________________________
IN THE ESTATE OF
THERESA RUTH STEINER
______________________________________
Nazarian,
Zic,
Meredith, Timothy E.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Meredith, J.
______________________________________
Filed: July 28, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-07-28 10:40-04:00
Suzanne C. Johnson, Clerk
In handwritten “amendments” to her Last Will and Testament (the “Will”), a
terminally ill testator revoked certain bequests she recently had made to her only child.
This appeal challenges the denial of a petition to caveat that holographic codicil (the
“Codicil”) of Theresa Ruth Steiner (the “Testator” or “Testatrix”). The disputed Codicil
revoked the Testator’s bequest of a life estate in her real property to appellant, Harold
Steiner (the “Caveator”), who was the Testator’s only child. The Codicil also limited other
bequests of personal property to him and removed him as a beneficiary of her residuary
estate. These changes inured to the benefit of others, including Krystal Renee Steiner
Vogtman, who is the Caveator’s daughter and a personal representative of the Estate of
Theresa Ruth Steiner (the “Estate,” appellee).
The Orphans’ Court for Garrett County denied the Caveator’s challenge to the
Codicil. When the Caveator appealed, the Circuit Court for Garrett County reviewed his
caveat petition de novo. The circuit court held that the Codicil was facially valid and that
the Caveator failed to prove that it was not a valid instrument. The Caveator then filed an
appeal to this Court.
In this appeal, the Caveator contends that the circuit court erred in (1) “placing the
burden of proving the invalidity of the Codicil on [him] despite the Codicil not containing
an attestation clause[,]” and (2) “relying upon the prior finding of the Orphans’ Court that
the Codicil was valid when it denied [his] Motion to shift the burden to” the Estate. For
reasons that follow, we disagree with both contentions of error and affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
The Will and Codicil
On February 5, 2020, the Testator signed her Will. At that time, she was being
treated for metastatic cancer.
In her Will, the Testator made specific bequests to the Caveator and others. Using
a typed “RocketLawyer.com” form, the Testator bequeathed to the Caveator a life estate in
her real property at “3905 Fairview Rd. Grantsville Md. 21536[,]” $15,000 from a bank
safe deposit box, a motorcycle, a truck, a joint interest in proceeds from the sale of her
“collectables[,]” and a secondary interest in her coin collection. After giving the remainder
interest in that real property and certain other items of personal property to others, the
Testator bequeathed both her “remaining tangible personal property” and her residuary
estate equally to the Caveator and Testator’s granddaughter, Krystal Vogtman. The
Testator nominated both Ms. Vogtman and Nellie A. Herget of Essex to serve “as Co-
Executors[.]”
The Will was signed by the Testator, two witnesses, and Joanne M. Hunton, a
Notary Public in Harford County. Both witnesses—Ginger D. Herget and Adrian Herget—
signed beneath an attestation clause “certify[ing] that” they and the Testator signed “the
above instrument, which consists of 5 pages, including the page[] which contain[s] the
witness signatures,” in the “sight and presence” of each other.
The disputed Codicil purporting to amend the Will indicates that it was executed
four months later on June 5, 2020. Handwritten in block letters on two sheets of lined
notebook paper, marked “PAG [sic] 1 of 2” and “PAGE 2 of 2,” the Codicil begins:
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Amendments to
Last Will and Testament of
Theresa R.B. Steiner
Dated February 5, 2020
Article III
D[i]sposition of Property
I revoke Lifetime Living Rights To 3905 Fairview Road Grantsville, MD
21536 along with $15,000 from safe deposit box . . . , all equipment to Harold
W. Steiner (Buddy)[.] He will still receive the 2009 F150 Truck and Harley
Davidson and Business Tools.
In addition to those changes, the Codicil altered the Testator’s bequests for her coin
collection, safe deposit box, collectables, “remaining tangible personal property[,]” and
“risiduary estate” [sic] by eliminating the Caveator as a primary or secondary beneficiary.
On the second page of the Codicil, following the last two amendments to the
Testator’s Will, are the words: “In Witness Whereof, I have subscribed my name below,
This 5th day of June, 2020.” Beneath that appear three signatures next to three labels: one
stating “Testator Signature” and two that say “Witness Signature[.]” The signatures on the
witness lines are “Adrian Herget” and “Alexis Matters.” In addition, to the left of those
signature blocks, there is a signature and seal of “Ginger D. Herget[,]” as a Baltimore
County Notary Public. (Ginger D. Herget had been one of the two witnesses to the Will
executed on February 5, 2020, as had Adrian Herget.)
Proceedings in Orphans’ Court
The Testator died on September 1, 2020. Krystal Vogtman and Nellie Herget (the
“Personal Representatives”) were appointed Co-Personal Representatives. In the Orphans’
Court for Garrett County, they filed both the Will and the Codicil.
3
The Caveator challenged the Codicil, but not the Will, alleging that, on June 5, 2020,
the Testator “was not mentally competent or coherent at the time this Codicil was written
and did not possess the requisite capacity to make amendments to her Will, dated 5
February 2020.” In addition, the Caveator asserted, “[t]he Testator’s declining physical
and mental health produced a substantial weakness” that allowed “interested persons with
. . . no ties of blood” to exercise “[u]ndue [i]nfluence” to “disinherit[] all individuals who
were intended to inherit the estate[.]” Finally, the Caveator alleged “[f]raud” because he
did “not believe that [the Testator] was physically present with the two witnesses when she
signed the Codicil” and “the person who notarized this document is the natural daughter of
the Executor of the Will, Nellie Herget.”
The Personal Representatives filed a written opposition, asserting:
During the time the amendment was made on Friday June 5, 2020 my
Grandmother was in her right state of mind. The reason that she changed her
will was due to the ongoing harassment that she rec[ei]ved from [the
Caveator]. These were my Grandmother’s wishes and there was no fraud
conducted.
The orphans’ court, in its written order denying the Caveator’s petition, found that
the burden of proving “testamentary incapacity was not met by the” Caveator and that the
Testator “drove approximately three hours, from Grantsville, MD to Essex, MD, and had
ample time in which to contemplate her actions before signing the Codicil.” Her “medical
condition, although deteriorating near the time of her death, does not reflect her mental
capacity on the specific date at which she made the decision to sign the Codicil.” The
orphans’ court determined that, “on the date of the signing of the Codicil,” “the Testatrix
met the requirements of testamentary competency.”
4
Proceedings in Circuit Court
The Caveator appealed that decision to the Circuit Court for Garrett County. In de
novo proceedings that were heard on July 12, 2021, the circuit court reviewed the Will and
Codicil that had been transmitted from the orphans’ court.
The Caveator and his fiancée testified in support of his challenge to the Codicil.
The Caveator, the only child of the Testator, testified that he grew up “between Grantsville
and Essex, fifty-fifty.” He noted that, before his mother’s death on September 1, 2020, she
suffered from cancer for “[a] good five years.”
On August 24, 2020, while the Testator was hospitalized, the Caveator “check[ed]
on the estate” and “noticed that the window was open,” which looked to him “like a staged
break-in” because “[t]hings was [sic] moved around, missing this and that.” He found
among the Testator’s papers another handwritten document that bears her signature but is
not dated and not signed by any witnesses. Except for those omissions, this document
appears to be identical to the Codicil that was signed and witnessed on June 5, 2020, in
format, handwriting, and even spelling errors (e.g., “PAG” and “risiduary”).
When the Caveator was shown the signed, dated, and witnessed Codicil that the
orphans’ court admitted to probate, he acknowledged that it has “a notary seal” of Ginger
Herget, the daughter of Nellie Herget (who is one of the Personal Representatives for the
Estate and a former “co-worker of” the Testator). The probated Codicil also has witness
signatures by “Alexis Matters[,]” whom the Caveator knew to be living “down in . . .
Baltimore[,]” and “Adrian Herget,” whom the Caveator knew to be living in “Hyde
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Park[.]” (As noted above, Adrian Herget had also been one of the witnesses on the Will
executed on February 5, 2020.)
According to the Caveator, the drive from Grantsville to Essex “where these people
purportedly were” would take “three and a half hours[.]” Given the Testator’s age and
worsening medical condition, however, she could not drive herself. The Caveator argued
that she would not have been able to tolerate such an “arduous” trip.
On cross-examination, the Caveator acknowledged he was not contesting the
orphans’ court’s finding that, on February 5, 2020, four months before the date of the June
5 Codicil, the Testator signed her Will, nor that that document was witnessed by Ginger
Herget and Adrian Herget, who are the daughter and grandson of Personal Representative
Nellie Herget. Although Ginger Herget’s signature also appears on the Codicil as a notary,
the Caveator opined that, even if the Testator “mighta had somebody drive her” to Essex
to sign the Will in February, he simply did not believe anyone did so for the Codicil.
At that point in the hearing, counsel for the Caveator argued to the court: “[W]e
have shifted the burden to prove the validity of the” Codicil to the Personal
Representatives. Citing Md. Code (1974, 2017 Repl. Vol.), § 4-102 of the Estates and
Trusts Article (“E.T.”), counsel contended that, because the newly found copy of the
Codicil was “not witnessed,” and even if it was, “lacks the attestation clause[,]” the
Caveator had met his “burden of proving this document is facially invalid, and the burden
has now switched to the [Estate] to show . . . that this is a valid instrument.”
Counsel for the Estate opposed the motion, arguing that “the proper parties to shift
the burden would have been the witnesses or the notary named and not a person who was
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not there[.]” Moreover, “the formalities of an attestation clause [are] not meant to defeat
the purpose and the intent of the Testator,” as “effectuated in the In Witness Whereof, I
have subscribed my name below” language of the Codicil “indicat[ing] that it has been
witnessed and then the witnesses signed the[ir] name.” All “they’ve produced[,]” counsel
for the Estate pointed out, “is a copy of a [Codicil] signed by the Testator prior to being
witnessed” and testimony from the Caveator that he did not “think she would have drove
down there,” which is not enough to “give[] rise to the burden shifting meant under the
statute[.]”
The circuit court “disagree[d] that the burden has been shifted at this point[,]”
explaining:
The burden is still with the moving party [i.e., the Caveator] to establish that
there are reasons why this holographic codicil should not be recognized by
the Court. It was recognized by the Orphans’ Court and by not having an
attestation clause to the codicil, . . . still does not, in and of itself, express that
this was not the clear intent of the Testatrix in this case.
Counsel for the Caveator persisted in arguing that the “second document” he found
in the Testator’s house cast doubt upon the due execution of the Codicil because the second
document—though signed by the Testator—lacked witnesses and a complete attestation
clause. But the court pointed out “that [second document] may be a draft copy[,]” and, the
court observed that, “if you’re challenging the validity of those signatures” on the fully
signed Codicil, “you would need more than just saying I found an unsigned copy. You’d
have to have these individuals that would say that this is not my signature.” Counsel for
the Estate agreed that the burden would not shift “without those necessary witnesses[,]”
because the Testator could “sign and then acknowledge [to the witnesses] that she signed
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[the Codicil.]” “Simply finding an unsigned draft of that document” without any witness
signatures, the court explained, did not “absolve” the Caveator of his “responsibility to
show the invalidity of those signatures; most importantly, the signature of the Testatrix in
this case.”
When proceedings resumed after a short recess, the Caveator presented additional
testimony and medical records regarding the health of the decedent. The Caveator
recounted that, at the hearing before the orphans’ court, Krystal Vogtman testified that the
Testator signed the Codicil on June 5 “in Baltimore[.]” Yet, when the Caveator saw the
Testator on May 24 for her birthday, her condition was “[n]ot good at all” because her
cancer was “back” and “[s]he was on chemotherapy.” “She was in a wheelchair” and
suffered “[e]xtreme fatigue.” He asserted that, according to hospital records admitted into
evidence, on May 28, 2020, “[h]er recent physical and mental decline ha[d] prohibited her
from driving on her own.” On June 2, 2020, just three days before she signed the Codicil,
“[s]he had 7,700 milliliters drained” in a paracentesis procedure.1
1
We take judicial notice that paracentesis is commonly an outpatient medical
procedure, performed with local anesthesia while the patient is awake, “to remove extra
fluid from [the patient’s] belly (abdomen). . . . If the fluid buildup is causing discomfort or
pain, all of the fluid may be drained.” https://johnshopkinsibportal.stay
wellsolutionsonline.com/Library/HealthSheets/3,S,40924 (last visited June 15, 2022). See
generally Md. Rule 5-201(a)-(c) (“A court may take judicial notice” of a fact that is “not
subject to reasonable dispute in that it is . . . capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.”); Md. Rule 5-201(f)
(“Judicial notice may be taken at any stage of the proceeding.”). Cf. Abrishamian v.
Washington Med. Grp., P.C., 216 Md. App. 386, 414 (2014) (recognizing that “the
categories of adjudicative facts susceptible to judicial notice” include “medical” facts);
Lerner v. Lerner Corp., 132 Md. App. 32, 40 (2000) (“[A]n appellate court may take
judicial notice.”).
8
The court questioned the Caveator, asking whether he saw his “mother on June 5th,
2020[,]” or “the day before” or “the day after[.]” The Caveator answered: “No, I didn’t.”
But he added that he had “talked to her . . . on June 2nd when she was getting operated on.”
He further testified that “she wasn’t driving [herself] for the last six months” before she
died, but then acknowledged that she “was paying people, acquaintances, for rides[.]”
Joan Romanik, the Caveator’s fiancée, testified that the Testator “was really sick”
in May 2020 and had not been driving herself for a year before her death.
Following testimony from those two witnesses, counsel for the Caveator renewed
his argument that “we have proven enough that the burden has shifted to the” Estate. In
counsel’s view, they had triggered that shift by producing “a document in evidence which
is unwitnessed” and “lacks the proper attestation[,]” as well as testimony that the Testator
“was very sick[,]” so she “couldn’t drive” and that the “ride” from Grantsville to Essex,
where the Codicil was allegedly executed, was “arduous[.]”
Counsel for the Estate responded that “the burden has not shifted and continues to
be with the” Caveator. In support, counsel pointed out that “the issue of whether she drove
down or whether somebody drove her down” was not resolved because “[t]here has been
nothing presented whatsoever to challenge that this was not [sic] a validly executed and
witnessed [Codicil] and notarized, to boot[.]” Given the “testimony that she paid people
for rides” and the evidence that “[s]he ended up wherever the witnesses were or the
witnesses ended up wherever she was[,]” the appeal to the circuit court should “be
dismissed[.]”
9
The court denied the Caveator’s renewed motion to impose the burden of proving
the validity of the Codicil on the Estate, pointing out that “[t]here’s been no testimony other
than . . . conjecture” by the Caveator and his fiancée, neither of whom was “present on the
date” the Codicil was signed. The court ruled that the “unsigned copy, . . . purportedly
found at the residence of” the Testator was “insufficient to shift the burden[.]”
When the court asked counsel for the Estate whether he would “put on a case,”
counsel answered that they were “seeking a dismissal” and that, although he had “witnesses
here[,]” he was “not going to offer any testimony that any of them drove her down that day
or saw her driving down, so I don’t know that it would be relevant as far as that issue is
concerned[.]”
At the Caveator’s request, his counsel then “reiterate[d] that Ms. Vogtman did
testify” in the orphans’ court “that the decedent did drive herself down from Baltimore”
even though “the evidence shows that is virtually impossible given her medical
condition[.]” Counsel then argued that, given that the Codicil lacks an attestation clause,
and that the copy of the document found by the Caveator was “simply signed and not
witnessed,” “this [C]odicil is not a valid instrument[.]”
Counsel for the Estate countered that, in this “de novo hearing[,]” the “proof” from
the orphans’ court hearing “isn’t before the court[,]” and based on “the brief testimony of
the two witnesses[,]” the Caveator failed to show that it was not possible that the Testator
“drove herself down or somebody else drove her.”
The court found “that it is a valid Will and [C]odicil dated June 5th, 2020, in this
case, and the appeal is denied[.]” In support, the court reasoned:
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[I]n reviewing this case, which is a de novo appeal, the challenge is . . . to the
[C]odicil . . . dated June 5th, 2020. The copy which was presented to the
Orphans’ Court, which the Court has in its file, is signed by the
Testatrix, witnessed, and notarized, and with respect to those signatures,
there is a presumption that those are valid signatures unless there is
some evidence to the contrary.
In this matter, the only testimony that we’ve had is from the . . .
Testatrix’s only child, Harold William Steiner, and his fiancée, Joan
Romanik. Both parties testified that Ms. Theresa Ruth Steiner was incapable
of driving down to Essex where we’re presuming this . . . was signed, but
there’s really been no evidence that that’s actually where it was signed. It
was apparently signed in the state of Maryland because we have a Maryland
notary on this document and witnessed, but we don’t know whether . . . she
was driven to Baltimore, whether Ms. Steiner met them halfway. We simply
don’t know, and there’s been no testimony to that point.
The only testimony we have is that . . . neither one of [the two
testifying witnesses] actually witnessed or saw Theresa Ruth Steiner on the
date in question, which is June 5th, 2020. So they have no direct testimony
or any observations of the signing of this document or the lack of signing of
this document. They simply don’t know, through no fault of their own. They
testify to a number of presumptions they make from her general physical
state, which were [medical records] admitted into the record as Plaintiff’s
Exhibits 2 and 3, which were admitted as business records, but there’s been
no testimony from any medical professional as to the accuracy of those
documents. They were simply entered as a business record, and the Court
treats them as such.
The alleged statements at the Orphans’ Court hearing by Ms.
Vogtman were simply hearsay, and we don’t have those parties here
testifying, so, really, what we have is, clearly, a concerned son and his fiancée
about their mother’s last wishes, but they have failed to meet their burden to
overcome the presumption that these are valid signatures on this [C]odicil.
With respect to the attestation clause . . . not being present, the
document in question here, the alleged [C]odicil, which currently shows the
intent and the desire of the Testatrix in this case, which is the primary concern
of the estate and trust laws to do what the testator or testatrix desires to do
with their property.
There’s been no legitimate or clear challenge to the signatures on
this document. There’s been no direct testimony as to the validity of this
11
document, and the Court finds that the [Caveator] has failed to meet the
burden of proving that this was not a valid document in this case or that
the decedent did not possess the necessary mental capacity on the
specific date of June 5th, 2020, to make the decision to sign the [C]odicil.
(Emphasis added.)
The Caveator noted this timely appeal.
LAW GOVERNING REVIEW OF TESTAMENTARY INSTRUMENTS
The requirements for legal execution of testamentary instruments are governed by
§ 4-102(b) of the Estates and Trusts Article, which provides (with exceptions and
alternatives not relevant here):
(b) [E]very will shall be:
(1) In writing;
(2) Signed by the testator . . . ; and
(3) Attested and signed by two or more credible witnesses in:
(i) The physical presence of the testator[.]
E.T. § 4-102(b).
The party seeking to probate a will or codicil bears a threshold “burden of proving
the existence of these elements, by a preponderance of the evidence,” Groat v. Sundberg,
213 Md. App. 144, 152 (2013), but, as the Court of Appeals explained in Castruccio v. Est.
of Castruccio, 456 Md. 1, 17-18 (2017), a “presumption of due execution” can be found to
exist under circumstances the court discerns from the document itself:
One way to establish the validity of a will is through an attestation
clause in the will itself. “An attestation clause is a ‘provision at the end of
an instrument (esp. a will) that is signed by the instrument’s witnesses and
that recites the formalities required by the jurisdiction in which the
instrument might take effect (such as where the will might be probated).’”
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Slack v. Truitt, 368 Md. 2, 8 n.5 (2002) (quoting Black’s Law Dictionary 124
(7th ed. 1999)). “[A]n 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.”
Van Meter v. Van Meter, 183 Md. 614, 617-18 (1944). Furthermore, “a
presumption of due execution attaches to a will that contains the
testator’s signature and an attestation clause signed by the witnesses.”
Slack, 368 Md. at 7-8 (footnote omitted). “[O]nce the presumption attaches,
the burden of proof is on the caveator to show by clear and convincing
evidence that the facts stated in the attestation clause are untrue.” Id. at 8(footnote omitted).
On the other hand, an attestation clause is not a requirement for a
valid will. See id. at 8 n.5 (“A formal attestation clause is not an essential
part of a will.”); Van Meter, 183 Md. at 617 (“The validity of the execution
of a will depends, not upon an attestation clause, but upon conformity of the
execution with the requirements of the statute, and also the testimony of the
subscribing witnesses if they are produced and examined.”). Nor is an
attestation clause required in order to establish the presumption of due
execution. See Slack, 368 Md. at 12 (“[A]n attestation clause is not the sine
qua non of the presumption of due execution.”). “[I]n the absence of an
attestation clause, if a proponent of a testamentary document can
adduce sufficient evidence from the document and/or surrounding
circumstances to make a prima facie case for the satisfaction of the
statutory requirements for execution of a will, the presumption of due
execution attaches.” Groat, 213 Md. App. at 156-57. Thus, a proper
attestation clause in a will is itself sufficient to establish a prima facie case
for the validity of the will, but is not necessary to do so.
(Emphasis added.)
The Court of Appeals consistently has recognized “the established rule in this State
that a will and codicil are to be construed together as one instrument and reconciled as far
as practicable.” Matter of Albert G. Aaron Living Tr., 457 Md. 699, 719 (2018) (quotation
marks, emphasis, and citation omitted).
We review the circuit court’s decision regarding the validity of the Codicil “on both
the law and the evidence.” Md. Rule 8-131(c). Although the interpretation and
13
enforcement of a testamentary instrument is a legal determination that we review de novo,
we “will not set aside the judgment . . . on the evidence unless clearly erroneous, and will
give due regard to the opportunity of the trial court to judge the credibility of the
witnesses.” Id. See Albert G. Aaron Living Tr., 457 Md. at 707.
DISCUSSION
I. Burden of Proof Challenges
The Caveator contends that the circuit court “erred in placing the burden on [him]
to show the invalidity of the Codicil. This error occurred in the initial placement of the
burden on [him] and continued when the [c]ourt gave the Codicil a presumption of validity
despite the lack of an attestation clause.” In support of this contention, he cites the circuit
court’s comments (which we have quoted above) in the course of ruling on his requests to
assign to the Personal Representatives the burden of proving the validity of the Codicil.
The Caveator asserts that the court’s remarks establish that the court erroneously and
“repeatedly stated that the burden was placed on [him] from the beginning of the trial and
that this burden . . . never shifted.” The Caveator argues that, as in Groat, 213 Md. App.
144, the burden remained on the Personal Representatives to prove the Codicil’s validity
because the presumption of due execution did not attach to the Codicil.
In response, the Estate contends that the circuit court did not err in finding, based
upon the document itself and/or surrounding circumstances, that the challenged Codicil
was entitled to a presumption of due execution, and then ruling that the Caveator failed to
overcome the presumption by clear and convincing evidence. Despite the lack of a
formalized attestation clause, the Estate contends, the court correctly found the Codicil
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presumptively valid based on the “In Witness Whereof” language that was followed by the
signatures of the Testator, two witnesses, and a notary. Citing Castruccio and Slack, the
Estate argues that “the Codicil offers greater reliability than” the probated documents in
either of those cases.
We agree with the Estate that Slack, Groat, and Castruccio offer instructive
comparisons. Applying lessons from those decisions, we will explain why they support
the circuit court’s judgment in this case.
Slack v. Truitt: “Witnessed By” Attestation of Holographic Instrument
In Slack, the Court of Appeals affirmed this Court’s decision that the presumption
of due execution applied to a holographic will signed by two witnesses in the testator’s
presence, even though one witness testified that she did not know she was signing a will
and could not recall seeing the testator’s signature on it. A couple of hours before Dale
Slack committed suicide, he asked his neighbor Dorothy Morgan to sign a one-page
handwritten document. 368 Md. at 4-5. Morgan signed the document, not noticing either
that it was a will or whether Slack had signed his name. Id. Five minutes later, Slack
returned to ask Morgan’s daughter, Sandra Bradley, to sign the same page, and the daughter
did so, noticing that Slack had already signed. Id. at 5.
Neither the orphans’ court nor the circuit court admitted Slack’s holographic will to
probate. See id. at 6. This Court reversed, holding that the testator had “‘acknowledged
the document as his own’” by handing Morgan and Bradley “‘a document in his
handwriting and asking them with apparent authority to sign it.’” Id. at 6-7 (quoting Truitt
v. Slack, 137 Md. App. 360, 367 (2001)). “‘While the witnesses’ attestations were hurried
15
and careless,’” we concluded that “‘they were sufficient under [E.T.] § 4-102.’” Id. at 7
(citation omitted).
The Court of Appeals affirmed, deciding that, under the circumstances, “the
presumption of due execution arises notwithstanding the absence of an attestation clause.”
Id. at 10, 12. Recognizing that it had “not [previously] addressed the question[,]” the Court
agreed “with the reasoning of those courts that hold that an attestation clause is not the
sine qua non of the presumption” of due execution. A will “subscribed by two
witnesses, both of whom signed their name following the word ‘witnesses[,]’” also
“facially [bears] every indicia of validity.” Id. at 10, 12, 16 (emphasis added; citations
omitted).
The Court in Slack expressly relied on two out-of-state cases it found persuasive
which had held that, even if attesting witnesses are “unable to testify or recollect, it is
proper to apply the presumption of due execution” based on their “witnessed by”
attestation. Id. at 15. Writing for the Court of Appeals, Judge Irma S. Raker explained:
In Mead v. Trustees of the Presbyterian Church, 229 Ill. 526, 82 N.E. 371(1907), the Supreme Court of Illinois reviewed a will that contained no
attestation clause but was signed by the testator and two witnesses. Neither
witness could recall anything about the circumstances under which they had
signed the writing. The court held that, under certain circumstances, an
attestation clause was not necessary to give rise to the presumption of
validity:
“In this case . . . the witness Boswell wrote immediately after
his name the word ‘witness,’ which shows clearly he
understood that he was witnessing the execution of the
instrument which he had signed as a witness, and [ditto marks]
following the name of Paul and appearing immediately
underneath the word ‘witness,’ show that witness also
understood he was signing as a witness to the execution of the
16
instrument. It was not necessary that a formal attestation
clause reciting all the facts necessary to a correct execution of
the will be added to the instrument to make it a valid will.”
Id. at 373; see also Annotation, Presumption as to Due Execution of Will
From Attestation, With or Without Attestation Clause, 76 A.L.R. 617, 622
(1932) (noting that there is “held to be a presumption of proper execution
even though there is no attestation clause, where the attestation is merely by
subscription, or followed by the word ‘witnesses.’”); German Evangelical
Bethel Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057, 1062 (1931) (noting
that “[b]y subscribing the will the attesting witnesses impliedly vouch for its
due execution as fully or as broadly as they would do expressly if there were
a complete attestation clause, though, perhaps, with less force and
emphasis.”).
Similarly, in In re Pitcairn’s Estate, 6 Cal.2d 730, 59 P.2d 90 (1936),
the California Supreme Court held that the presumption of due execution
should not be limited to wills containing an attestation clause. Pitcairn’s will
was challenged on the grounds that the will was not executed with the
formalities required by the statute. The court noted that it had before it “a
case where the signatures of the testatrix and subscribing witnesses are
genuine; the will is attested, but lacks a formal attestation clause reciting the
steps in execution; the attesting witnesses, seemingly adverse but
uncontradicted on the essential issues, testify to a technical failure to comply
with the formalities of execution.” Id. at 92. The issue was whether the trial
court could admit the will to probate. The court held that it could.
The court began its analysis with a restatement of the “well
established [rule] that a regular and complete attestation clause makes out a
prima facie case of due execution of the will.” Id. In rejecting the argument
that the presumption is limited to cases where a full attestation clause is
contained in the will, the court said:
“In our view the distinction thus drawn is illogical and the rule
is too narrow. There is no need of an ‘attestation clause;’ it is
sufficient that a will be witnessed or attested, and the recital of
the steps in execution is not required. It does not seem
reasonable, therefore, to have the important presumption of
due execution turn upon the presence or absence of this
unnecessary provision. The foundation of the presumption is
the proof of genuineness of the signatures, for the instrument
is then on its face a valid will. Doubtless recitals in an
attestation clause are entitled to greater weight, but the logical
17
basis for the presumption, as well as its practical necessity, is
the same whether or not there is such a clause. This view has
the support of a number of authorities.”
Id. The court [in Pitcairn’s Estate] affirmed the judgment admitting the will
to probate. Id. at 93.
Slack, 368 Md. at 10-12.
Following the reasoning in Mead and Pitcairn’s Estate, the Court of Appeals held
that Slack’s holographic will “bears on its face every indicia of due execution” because (1)
it “consists of a single page, written entirely in the testator’s handwriting, and bearing the
signature of the testator and two witnesses” who signed “beneath the words ‘Witnessed
By[,]’” and (2) the testator adequately acknowledged his testamentary intent through his
conduct, by presenting the signed and handwritten document to the two witnesses while
asking each to sign it. Id. at 12.
Despite Morgan’s testimony that she did not look at the document or remember
whether Slack’s signature was there when she signed it, the Court held that the presumption
of due execution attached to the will. Id. at 14-15. The evidence did “not suggest that
[Slack] had not signed the will prior to Morgan’s signing it[,]” but instead, simply indicated
“a failure to remember” his signature. Id. at 15.
Nor did Morgan’s inability to supply “‘facts necessary to a correct execution of the
will’” constitute clear and convincing evidence defeating “the presumption of due
execution that attache[d] to the will” based on such “witnessed by” attestation. Id. at 10,
17-18 (quoting Mead, 82 N.E.2d at 373). The Court in Slack reasoned: “[I]f subscribing
witnesses were required to recollect all the formalities prescribed by statutory
18
requirements, few wills would be immune to attack, particularly after the passage of many
years.” Id. at 16.
Groat v. Sundberg: Unattested Codicil
In Groat, 213 Md. App. at 147, this Court held that a presumption of due execution
did not attach to a typed, one-page document that had neither a formal attestation clause
nor any other “witnessed by” verbiage. In addition to the lack of attesting language in the
document, the alleged witness could not recall whether she was in the same room as the
testator when she signed her name on the document. The document, alleged to be a codicil
dated January 21, 2010, would have revoked a bequest of stock in a limited liability
company to two individuals named in a will that had been executed by the testator, Frank
Halgas (“Frank”), on August 16, 2006. Id. at 147-48.
The two-sentence document alleged to be a codicil stated: “‘Upon my death I will
transfer all of my stock to Irv Groat for the sum of $10,000.00. A copy of the check should
be furnished to [the company] to initiate transfer.’” Id. at 148. Frank and Groat signed on
lines next to their typed names. Id. Underneath those, the other purported witness, Frank’s
niece, Melissa Halgas (“Melissa”), signed her name. Id. No text or signature line
accompanied her signature. Id.
In the orphans’ court, Groat testified that he and Frank signed three copies of the
document in each other’s presence. Id. at 149. Frank told Groat to leave the copies on the
desk ‘“in his den where he was spending most of his time[,]”’ that ‘“he would have
[Melissa] sign them[,]”’ and that he would call ‘“when that was accomplished.”’ Id.
19
Melissa testified that “she had a conversation with” Frank on January 15, 2010,
“about ‘his intention to . . . transfer the stock to [Groat], instead of following the Will as it
was written.’” Id. She “came back two weeks later, . . . around February . . . 5th [or] 6th”
and signed three copies of the document that had already been signed by Frank and Groat.
Id. at 149-50. Melissa admitted that she did not remember whether the copies were on
Frank’s desk in the room where he was sitting, or in the kitchen. Id. at 150-51. She
conceded that she could not recall whether she signed the document in Frank’s presence,
telling the court: “To be honest with you, I don’t recall if I signed it in his presence or not.”
Id. at 150 (emphasis omitted).
The orphans’ court found that the document was not a valid codicil because
Melissa’s testimony was ‘“inadequate”’ to satisfy ‘“the witnessing requirements for
testamentary documents under [E.T.] § 4-102[.]”’ Id. at 151. This Court affirmed that
decision, emphasizing: “Unlike Slack, the words ‘witness,’ ‘witnessed by,’ or some other
variation do not appear anywhere on the Document, much less next to the signatures of
[either Groat or Melissa].” Id. at 157 (emphasis added). We pointed out that there was
“nothing on the Document to indicate that, when [Groat and Melissa] signed” it, “they were
attesting” that they saw “‘those things exist and are done which the statute requires.’” Id.
at 157 (quoting Van Meter, 183 Md. at 619).
Because Melissa “could not testify that the statutory requirement of her signing as
a witness in the presence of [the testator] had been done, . . . she could not attest to the due
execution of the Document.” Id. at 159 (emphasis added). “There being no other evidence
of [the witness]’s signing the Document in the presence of [the testator],” we concluded
20
“that there was insufficient evidence to establish a prima facie case of due execution of the
Document as a codicil, and thus the presumption of due execution did not attach.” Id. We
held that the orphans’ court did not err in relying on the witness’s inability to remember a
key fact regarding the execution of the instrument as grounds for finding that Groat failed
to prove the statutory requirements for probate of the alleged codicil. Id. at 159-60.
We distinguished the facts in Groat from those in Slack, where “the presumption of
due execution had already attached to the document” because of other evidence of due
execution, and therefore, “the witness’s lack of memory [in Slack] did not overcome that
presumption.” 213 Md. App. at 160. In contrast, in Groat, because the document and
surrounding circumstances did not support “a presumption of due execution, the orphans’
court was free to base its decision on [the witness]’s testimony that she did not recall
whether she signed” the codicil in the testator’s presence, and our Court would not consider
the finding based upon that evidence clearly erroneous. Id. at 161.
Castruccio v. Estate of Castruccio: Presumption of Due Execution
Without Attestation Stating That Witness Signed in Presence of Testator
In its most recent attestation case, the Court of Appeals held that the presumption
of due execution attached to the witnesses’ statement attesting that the testator signed the
will even though it was on a separate page and did not expressly state that the witnesses
signed in the presence of the testator. In Castruccio, 456 Md. 1, Sadie, wife of testator
Peter Castruccio (“Peter”), disputed the validity of his will leaving all but three cash
bequests to his longtime employee Darlene Barclay (“Darlene”). Id. at 9. To prevent Sadie
from passing his estate on “to certain family members of whom he did not approve[,]”
21
Peter, with his attorney’s assistance, changed his will to provide that if, “at the time of [his]
death, [his] beloved wife [did] not have a valid Will filed with the Register of Wills[,]” he
would “give, devise and bequeath all the rest and residue of [his] Estate and property” to
Darlene. Id. at 10 & n.2.
Peter signed the new will in the presence of three witnesses, beneath a clause
asserting that he “set [his] 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.” Id. at 11. He signed under seal, but without initialing
any of the pages. Id.
Below Peter’s signature, the following witness attestation clause began, with the
first two lines appearing on page 5, and the remainder on page 6: “‘I do hereby attest that
the testator [sic] to be of sound mind, fully able to understand this instrument, and the
testator voluntarily and freely did sign same.’” Id. Each witness signed his or her name
“under the word ‘WITNESS:’ and above a line that reads, ‘Signature, residing at:[.]’” Id.
Below each signature is either a typed or handwritten address. Id.
Sadie, who had not filed a will before Peter died, caveated the 2010 will which left
his residuary estate to Darlene. Id. at 12. After the orphans’ court transmitted seven issues
to the circuit court, the parties filed cross-motions for summary judgment. Id. at 12-13.
Sadie challenged the facial validity of the witness attestations on several grounds, including
that they were not on the same page as the testator’s signature or otherwise affixed to that
signature page, and that the witnesses did not expressly attest that they signed in the
presence of the testator. Id. at 19-20.
22
The circuit court held that the issue was not whether ‘“all of the pages were
mechanically affixed to each other[,]’” but instead, ‘“whether the document purporting to
be the will holds together as the unitary document completed by the testator and signed by
the witnesses[.]”’ Id. at 14. The court found that, because “the 2010 Will contained a
proper attestation clause, . . . the presumption of due execution attached[,]” and that “Sadie
had not presented clear and convincing evidence to overcome the presumption.” Id. at 15.
This Court affirmed in a reported opinion. See id.; Castruccio v. Estate of Castruccio, 230
Md. App. 118 (2016), aff’d, 456 Md. 1, 14-15 (2017).
The Court of Appeals agreed, holding that signatures of witnesses need not be on
the same page as the testator’s signature and that an attestation need “not recite the statutory
requirement that the witnesses signed the Will ‘in the presence of the testator.’”
Castruccio, 456 Md. at 31. See also id. at 29. Citing Slack and other decisions, the Court
noted that it “is generally reluctant to impose formalities beyond those specifically required
by statute” and that “the testator’s intention that the document act as his will is paramount.”
Id. at 28. Even though attesting language in a will, “standing alone,” may “not provide
prima facie evidence of the validity of the Will[,]” id. at 31, “ʻif a proponent of a
testamentary document can adduce sufficient evidence from the document and/or
surrounding circumstances to make a prima facie case for the satisfaction of the statutory
requirements for execution of a will, the presumption of due execution attaches.”’ Id. at
32 (emphasis added) (quoting Groat, 213 Md. App. at 156-57 (citing Slack, 368 Md. at
12)).
23
In analysis that will frame our discussion of the issues raised by the Caveator, the
Court of Appeals in Castruccio compared Peter’s new will to the testamentary documents
in Groat and Slack, and explained why the evidence supported the circuit court’s
application of the presumption of due execution to the will:
In this case, the circuit court did not err in finding “sufficient evidence
from the document and/or surrounding circumstances to make a prima facie
case for the satisfaction of the statutory requirements for execution of a will,”
[Groat, 213 Md. App.] at 157, and thus properly found that the presumption
of due execution attached to the 2010 Will. Although the attestation clause
itself is imperfect, each of the three witnesses signed their names under the
word “WITNESS:.” Cf. Slack, 368 Md. at 12 (that “[t]he two witnesses, in
the presence of the testator, signed beneath the words ‘Witnessed By’”
provides an indication of due execution). The witnesses’ signatures all
appear on the same page, which is the next consecutively numbered page
following the one that contains the testator’s signature. Cf. id. (that the
testator’s signature “was nearly adjacent to the signatures of the witnesses”
provides an indication of due execution). Additionally, the imperfect
attestation clause includes a recitation of some (though not all) of the
statutory requirements for execution of a will, including witnessing Peter
sign the will and a statement of Peter’s testamentary capacity.
Furthermore, the “surrounding circumstances” in this case provide
additional evidence of satisfaction of the statutory requirements. All three
witnesses testified that they observed Peter sign the 2010 Will, that he
declared the document to be his will, and that they all signed the Will in his
presence and in the presence of each other. See Van Meter, 183 Md. at 617(“The validity of the execution of a will depends, not upon an attestation
clause, but upon conformity with the requirements of the statute, and also the
testimony of the subscribing witnesses if they are produced and
examined.”…).
Therefore, based on the document itself and the circumstances
surrounding its execution, we conclude that the circuit court did not err in
finding sufficient evidence “to make a prima facie case for the satisfaction
of the statutory requirements for execution of a will,” Groat, 213 Md. App.
at 157, and thus finding that the presumption of due execution attached to the
2010 Will.
Id. at 32-33 (emphasis omitted).
24
The Caveator’s Challenges
Relying on Groat, the Caveator contends that the circuit court erred in “repeatedly”
placing the burden on him “from the beginning of the trial” and ruling “that this burden …
never shifted.” After examining the full record, we are not persuaded that is what
happened. To the contrary, we conclude that the circuit court made a threshold ruling that
the dated and signed Codicil was prima facie valid, and then found that the Caveator failed
to overcome the resulting presumption of due execution. We discern no error in either
decision.
Prima Facie Validity
The Caveator argues that “[t]he [c]ircuit [c]ourt erred in placing the burden of
proving the invalidity of the Codicil on” him from the outset, particularly “given the lack
of an attestation clause[.]” We disagree.
As in Castruccio and Slack, the circuit court found sufficient evidence, both from
the Codicil itself and from other circumstances surrounding it, to establish a prima facie
case that the statutory requirements governing execution of testamentary instruments were
satisfied. See Castruccio, 456 Md. at 32; Slack, 368 Md. at 12. The Codicil is handwritten
in block printed letters that are consistent over two consecutively-numbered pages. “PAGE
2 of 2” contains substantive testamentary language consisting of two bequests. Both of the
witnesses’ signatures and the Testator’s signature all appear on the same page below
language attesting “In Witness Whereof, I have subscribed my name below, This 5th day
of June, 2020,” and next to descriptive labels stating either “Witness Signature” or
“Testator Signature[.]”
25
In addition to this attestation by signators identified as witnesses, the Codicil bears
several other “indicia of validity” on its face. See Slack, 368 Md. at 15-16. The text of the
Codicil reflects the testamentary nature of the document, which referred to the
unchallenged Will. The circuit court was obligated to “construe [the Will and Codicil]
together as one instrument[,]” “reconcil[ing] [them] as far as practicable.” Albert G. Aaron
Living Tr., 457 Md. at 719 (emphasis omitted). The Testator’s revised bequests in the
Codicil went to persons who had previously been named as beneficiaries in the Will she
had undisputedly signed four months earlier. Moreover, Adrian Herget, who witnessed the
Codicil, also witnessed the Will, signing in what appears to be the same hand, beneath a
full attestation clause stating that the Will
was signed in our sight and presence by Theresa R.B. Steiner (the
“Testator”), who declared this instrument to be his/her Last Will and
Testament and we, at the Testator’s request and in the Testator’s sight and
presence, and in the sight and presence of each other, do hereby subscribe
our names as witnesses on the date shown above.
Likewise, Ginger Herget, who signed the Codicil as a notary, had also signed as a witness
to the execution of the Will below the same attestation clause and in handwriting consistent
with her notary signature on the Codicil.
Slack and Castruccio both held that the presumption of due execution does not
depend on the presence of a formal attestation clause that recites all of the statutory
requirements for executing a testamentary instrument. See Castruccio, 456 Md. at 32;
Slack, 368 Md. at 16. Instead, a testamentary instrument may be facially valid, giving rise
to a presumption of due execution, when “subscribed by two witnesses, both of whom
signed their name following the word ‘witnesses.’” Slack, 368 Md. at 16 (citing Mead, 82
26
N.E. at 372). Such language is sufficient to “‘show that [the] witness also understood he
[or she] was signing as a witness to the execution of the instrument.’” Slack, 368 Md. at
10 (quoting Mead, 82 N.E. at 373). See Castruccio, 456 Md. at 32. “‘[B]y subscribing the
will, the attesting witnesses impliedly vouch for its due execution as fully or as broadly as
they would do expressly if there were a complete attestation clause, though, perhaps, with
less force and emphasis.’” Slack, 368 Md. at 10-11 (quoting German Evangelical Bethel
Church, 39 S.W.2d at 1062).
Here, the Codicil bears attestations of two individuals who indicated that they were
each signing the document as a “Witness.” One of those witnesses was a person who, just
four months earlier, attested to witnessing that all of the statutory requirements were
satisfied when the Testator signed her Will. The Codicil is handwritten and bears the
Testator’s signature, which matches her signature that appears beneath a full attestation
clause in the Will. The Codicil was notarized by the same person who served as the second
witness for the Will. All signatures on the Codicil appear on a single page that begins with
bequests to individuals whom the Testator previously named as beneficiaries under the
Will. And, although hospitalized one week before her death, the Testator had retained a
signed but undated and unwitnessed copy of that Codicil among her papers at her home.
These factual circumstances materially distinguish this case from Groat, wherein the typed
document lacked comparable language, history, and witness labels.
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 testified,
27
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 statutory
requirements, few wills would be immune to attack, particularly after the passage of many
years.” Slack, 368 Md. at 15-16 (citing Pitcairn’s Estate, 59 P.2d at 90). The rebuttable
presumption that attesting witness signatures are valid protects the Testator’s intent from
being defeated by time and circumstances beyond her control. See id. Consequently, we
conclude that testimony from the two attesting witnesses was not required to establish a
prima facie case that all the statutory requirements for executing a testamentary instrument
were satisfied.
As Slack and Castruccio make plain, a court may find that an instrument is facially
valid, and therefore entitled to the presumption of due execution, even when: an attesting
witness cannot recall whether the testator had already signed the document, as in Slack; or
the witness cannot recall signing in the presence of the testator, as in Castruccio; or no
witness can recall any of the circumstances surrounding execution, as in Mead; or all
witnesses testify adversely to their attestations, as in Pitcairn’s Estate. We conclude that
the circuit court did not err in finding that the presumption of due execution applies in this
case even though neither witness to the Codicil was called to testify at the caveat hearing.
Here, as in Slack and Castruccio, and in contrast to Groat, the circuit court
determined that the Codicil was prima facie valid, even though it does not contain an
attestation clause, because it was “signed by the Testatrix, witnessed, and notarized[.]”
Based on the “presumption that those are valid signatures[,]” the court correctly ruled that
28
the burden was on the Caveator to prove by clear and convincing evidence that the Codicil
is invalid.
Failure to Prove Invalidity
The circuit court was not persuaded by the Caveator’s evidence that a fraud was
perpetrated by the proponents of the Codicil. The court found that the Caveator’s evidence
failed to prove either that the Testator lacked the mental capacity to form testamentary
intent or that she could not have traveled somewhere for the Codicil to be witnessed and
notarized.
The circuit court rejected the Caveator’s claim that the Testator’s medical condition
prevented her from making a competent decision to amend her Will. The court cited the
Caveator’s lack of contact with the Testator on June 4-6, 2020, the days surrounding her
execution of the Codicil. After accepting the Caveator’s testimony that the Testator’s
health was deteriorating in the months before her death on September 1, the court noted
there was “no testimony from any medical professional” regarding the Testator’s medical
condition on June 5, 2020. Based on the facial validity of the Codicil and the paucity of
evidence that the Testator’s medical and mental condition prevented her from forming
testamentary intent on the date she signed it, the court did not err in finding that there was
insufficient proof that the Testator lacked “the necessary mental capacity on the specific
date of June 5th, 2020, to make the decision to sign the [C]odicil.”
Likewise, the circuit court did not err in finding that the Caveator failed to prove
fraud in the execution of the Codicil. Regarding the Caveator’s discovery of a duplicate
document, signed but undated and unwitnessed, in the Testator’s home the week before her
29
death, the court found as a threshold matter that that document was insufficient to shift the
burden of proving validity to the Estate. A comparison of the two documents reveals that,
other than the missing date and witness signatures, the two documents are identical—down
to misspellings, handwriting, paper, and text formatting. And the fact that the Caveator
found the signed-but-unwitnessed copy among the Testator’s papers in her house one week
before the Testator died could support the inference drawn by the circuit court, i.e., that the
Testator intended the fully signed, dated, witnessed, and notarized Codicil to be effective.
Cf. Slack, 368 Md. at 17 (concluding that discovery of signed and witnessed will in the
testator’s home did “not suggest that there was any fraud worked upon the testator” but
instead “that the testator thought it was a valid will”).
With respect to the Caveator’s assertion that the Testator, witnesses, and notary did
not execute the Codicil in each other’s presence because, Caveator believed, the Testator’s
health prevented her from traveling to Baltimore for it to be signed, the circuit court pointed
out that there was no direct evidence of where the Codicil was signed, and the evidence on
that point was at best inconclusive. The court pointed out that “we don’t know whether
[the Testator] was driven to Baltimore, whether [she] met them halfway[,]” because there
was no “evidence that that’s actually where it was signed.”
Given the court’s conclusion that the presumption of due execution should apply,
the court did not err in finding that the Caveator “failed to meet the burden of proving that
this was not a valid document[.]” As in Slack and Castruccio, the evidence presented by
the Caveator was not sufficiently clear and convincing to overcome the presumption.
30
Based on this record, we hold that the court did not err in ruling that the Caveator failed to
meet his burden of proving that the Codicil was invalid.
II. Reliance on Orphans’ Court Finding of Validity
The Caveator contends in the alternative that the circuit court erred as a matter of
law “in relying upon the prior finding of the orphans’ court that the Codicil was valid[.]”
(Capitalization altered.) The Caveator states in his brief:
The [Circuit] Court stated, when denying Appellant’s Motion to shift
the burden to the Appellee, that it relied on the Orphans’ Court’s finding that
the Codicil was valid. Md. Code Ann., Cts. & Jud. Proc. § 12-502 is clear
that a de novo appeal shall be conducted “. . . as if there had never been a
prior hearing or judgment by the orphans’ court.” The Court’s reliance on
the Orphans’ Court’s finding is in clear contravention of the statute
governing appeals to the circuit courts from final judgments of the orphans’
court and constitutes reversible error.
The Caveator does not quote any specific statement made by the circuit court or cite
any specific page in the transcript in support of this contention of error. Regardless, based
upon our reading of the entire transcript, we are satisfied that the circuit court did review
the Caveator’s challenge to the validity of the Codicil de novo.
JUDGMENT OF THE CIRCUIT COURT
FOR GARRETT COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
31