Monday, October 14, 2013
A Maryland court held the witness’s failure to remember the circumstances of the testator signing results in the invalidity of the codicil. In Groat v. Sundberg, No. 1907 Sept. Term 2010, 2013 WL 4603124 (Md. Ct. Spec. App. Aug. 29, 2013), the court denied probate to a purported codicil to the decedent’s will on the grounds of lack of due execution. The case involved the validity of a homemade codicil to the testator’s will. The testimony showed that the testator and the witness signed in the presence of each other, but that the second witness, who signed the document some time later, could not recall whether she had signed it in the testator’s presence. Finding first that the presumption of due execution did not attach, the court held that the second witness’s inability to remember in what room of the decedent’s house she signed the document meant that the “sign in the testator’s presence” requirement was not met.
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.