EXECUTION OF LAST WILL & TESTAMENT

As Will Kits and Do-It-Yourself legal forms gain popularity, many people die without legally valid wills and leave their families to contest the legality of wills in probate court caveat proceedings.  Accordingly, when preparing and signing your Last Will and Testament, it is important to consult with an estate planning lawyer who understands the technicalities of will drafting, the proper execution of wills and how to avoid probate litigation.

MARYLAND STATUTORY REQUIREMENTS FOR VALID WILLS

Under Maryland statutes, there are three requirements for the validity of a decedent's Last Will and Testament:

Legally Valid Wills Must Be In Writing

Although videotaped wills may provide guidance in clarifying ambiguities in a will, or help to combat allegations of fraud or undue influence, in Maryland a will must be written in order to have any legal effect. Video or audio taped wills are not permitted. However, this does not mean that the will must be typed. Indeed, a hand written will is valid if it complies with the other two requirements for the creation of a valid will. But as a general rule, if a will is not written, it is simply not a will.

Legally Valid Wills Must Be Signed by the Benefactor, or in the Benefactor's Presence, at the Benefactor's Direction

Simply put, the testator must actually sign the will. If the testator is incapacitated, she may direct someone to sign for her. This must be done at her express direction, and in her actual presence.

The Last Will and Testament Must by Signed in the Presence of Two Competent Witnesses in Benefactor's Presence

A credible witness is a person over the age of eighteen, who is competent to understand what they are witnessing. Although it is not prohibited, potential beneficiaries are discouraged from witnessing wills. If there is no dispute over the instrument, a will witnessed by a beneficiary is valid and will be accepted for probate. However, in the event of a will contest, an instrument witnessed by a beneficiary could be met with skepticism, and may be portrayed by a skillful probate litigator as evidence of undue influence by the beneficiary. It is best to proceed with caution in this instance, and only use witnesses who have no stake in the estate proceeds.

Deciding who should witness a will is one of the most underappreciated nuances of the estate planning process. Ordinarily, witness selection is given little more thought than to see what persons happen to be nearby and over eighteen. In the event of a will contest, such a cavalier approach to witness selection can be fatal to a challenged instrument. These witnesses will be called to testify as to the testamentary capacity of the maker at the time of execution. Remember, the capacity of a person to understand and create a will at the time it is signed is the legal standard for creating a valid will. Preferably, a witness will have some legal and/or medical training which will allow her to offer persuasive testimony on the validity of the instrument at a caveat proceeding. If a will is executed in a hospital or nursing home, an ideal witness is a social worker, nurse, doctor, or other facility personnel who is familiar with the cognitive condition of the maker of he will.

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