Q: In Maryland, it appears that witnesses to a will must appear to verify a will in probate. However, must they be found?
Must witnesses to a will be found and accounted for in any way in an uncontested probate? What about a self proving will? Must the witness's verifying statement be sworn before a notary? What if only one of the witnesses is alive and can be found?
A: Proper attestation creates a presumption of authenticity, so it will usually be adequate in an uncontested probate. Beyond that, retaining a lawyer, whose fees are subject to review by the court and who is paid from the assets of the estate, is a good idea.
A: In the United Kingdom. there is a presumption of regularity of the validity of a will where a will is signed by the deceased testator in the presence of two witnesses both being present at the same time as per the requirements of the Wills Act.
In a recent contentious case we were instructed to work on where the will was likely to be disputed and were acting for the beneficiary and executor of the will,we requested for an affidavit of due execution from the witness who we could find . The affidavit of due execution was sworn before a notary public as the witness was outside the jurisdiction of the United Kingdom at the time. The other witness could not be found and this sole affidavit from one of the two witnesses was held to be acceptable by the Probate Registry who granted Probate of the will on the basis that the will appeared regular on the face of it.
Whilst the law in Maryland is different from the law of England & Wales,the above principles may be reviewed by the person posing the question as relevant issues to be considered towards establishing the authenticity and validity of a Will.
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