SADIE M. CASTRUCCIO
THE ESTATE OF PETER ADALBERT CASTRUCCIO, et al.
Nazarian, Arthur, JJ. [*]
testator put his signature on page 5 of a six-page will that
had consecutive pagination, consecutive paragraph-numbering,
and a single, uniform font and typeface. The witnesses signed
on page 6. The will's six pages may or may not have been
physically attached to one another by a staple at the time of
on a 1921 case that invalidated a one-page will because the
witnesses did not sign the will itself, but a separate
document that was not physically attached to it,
testator's widow challenged the will. The Circuit Court
for Anne Arundel entered summary judgment against the widow.
The Purported Will
Peter Castruccio died on February 19, 2013, at the age of 89.
He had run various businesses over the decades and, with his
wife of 60 years, owned numerous pieces of income-producing
real estate. The couple had no children.
Greiber Jr. had been Dr. Castruccio's attorney for many
years. In November 2010, Mr. Greiber deposited Dr.
Castruccio's six-page will, dated September 29, 2010, for
safekeeping with the register of wills. The will revoked all
prior wills and codicils, including a 2008 will that Dr.
Castruccio had signed.
February 2013, a week after Dr. Castruccio's death, Mr.
Greiber petitioned the register of wills to probate the 2010
will and a brief codicil thereto. Soon thereafter, those
documents were admitted to probate in the orphans' court.
will, which we reproduce in the appendix to this opinion,
leaves cash bequests in varying amounts to Darlene Barclay (a
longtime employee of Dr. Castruccio) and to two other
persons. Item 8 of the will leaves the "rest and
remainder" of the estate to Mrs. Castruccio, provided
that she survives Dr. Castruccio and that "she has made
and executed a will prior to [Dr. Castruccio's]
death." Item 10, titled "Residuary Clause, "
states that if Mrs. Castruccio "does not have a valid
will filed with the Register of Wills of Anne Arundel County
dated prior to" Dr. Castruccio's will, "all the
rest and residue of" of the estate shall go to Darlene
will's six pages are consecutively numbered as pages 1 of
6, 2 of 6, etc., through 6 of 6. After two brief,
introductory paragraphs, the will contains 11, consecutively
numbered "Items" or paragraphs, several of which
contain consecutively numbered subparagraphs. The font and
type-size are consistent throughout the document.
5 of 6 of the will, Dr. Castruccio signed his name. A few
spaces below the signature, the following words appear:
"SIGNED, SEALED, PUBLISHED AND DECLARE [sic], BY PETER
down, the last two lines of page 5 of 6 read: "The above
named individual, does declare for his Last Will and
Testament this instrument, have hereunto subscribe[d] to have
witness[ed] on the date last mentioned
above, and at the location, and [. . . .]"
(Bold in original.) Below that awkward language appears the
pagination, which reads "5 of 6."
next, and last, page appears to be a continuation of the
language at the bottom of page 5 of 6, because it is not
separated from that language by a period, semi-colon, or
other punctuation mark. It reads: "I do hereby attest
that the testator to be [sic] of sound mind, fully able to
understand this instrument, and the testator voluntarily and
freely did sign same." Below these words are the names,
printed and signed, of Mr. Greiber; his daughter, Samantha
Greiber; and Darlene Barclay's daughter, Kim Barclay. No
other text appears on that last page other than the
pagination, which, in culmination of the sequence of pages
before it, reads "6 of 6."
The Petition to Caveat
time of Dr. Castruccio's death, Mrs. Castruccio had not
filed a valid will with the register of wills. Under the
terms of Dr. Castruccio's will, therefore, the residue of
the estate would pass not to Mrs. Castruccio, but to Darlene
with the prospect that she would receive nothing under her
late husband's will, Mrs. Castruccio filed a petition to
caveat in the orphans' court. As a defendant, she named
her late husband's Estate.
Mrs. Castruccio successfully petitioned to transmit seven
issues to the circuit court for trial. See Md. Code
(1974, 2011 Repl. Vol.), § 2-105(b) of the Estates and
Trusts Article ("ET"). Denominated as Issues A
through G, those issues were:
(A) whether Dr. Castruccio executed the 2010 will;
(B) whether Dr. Castruccio executed the 2010 will with the
intention that it should constitute his last will and
(C) whether all of the pages of the 2010 will are the genuine
pages that Dr. Castruccio believed to comprise the will that
he intended to execute;
(D) whether the will was procured by undue influence;
(E) whether the will was procured by fraud;
(F) whether the will was actually attested and signed by
credible witnesses in Dr. Castruccio's presence; and
(G) whether the contents of the will were read by and known
to Dr. Castruccio at and before the time of the execution of
the will on September 29, 2010.
The Motions for Summary Judgment
Estate moved for summary judgment. Darlene Barclay, who
intervened as a co-defendant, submitted a memorandum stating
that she adopted the reasoning in the Estate's motion.
Castruccio opposed the motion. In addition, she filed a
cross-motion for summary judgment as to Issue F, which
concerned whether the will was actually attested and signed
by credible witnesses in the testator's presence.
support of her cross-motion, Mrs. Castruccio argued that the
Estate failed in its initial burden to present prima facie
evidence that the document was validly executed. She relied
principally on Shane v. Wooley, 138 Md. 75 (1921),
which had upheld the invalidation of a one-page will because
the witnesses' signatures did not appear on the will
itself or on a document that was physically attached to it.
Shane, Mrs. Castruccio argued that the witnessing or
attestation was invalid, (a) because the witnesses did not
sign on the same page as Dr. Castruccio, and (b) because the
page containing the witnesses' signatures was not
"physically connected" to the page on which Dr.
Castruccio had signed his name. Although the statutory
provision on attestation requires only that a will be
"attested and signed by two or more credible witnesses
in the presence of the testator, " Mrs. Castruccio
argued, in substance, that Shane adds a kind of
judicial gloss, under which the pages must be affixed to one
another if the witnesses and testator do not sign on the same
Castruccio presented the affidavit of her attorney, who
declared that one month after the document (and its codicil)
were admitted to probate, he inspected it at the register of
wills, where it had been on file since November 2010. He said
the document was comprised of "six separate, unattached
pages, " without any staples, "staple holes or
other evidence of having ever been physically connected
together[.]" The register made a scanned copy of the
original document, which Mrs. Castruccio appended to her
motion. Mrs. Castruccio also presented the affidavit of the
register of wills, who stated that her office's scanner
was accurate enough to capture and depict the image of staple
response, the Estate disputed Mrs. Castruccio's assertion
that page 6 of 6 (containing the witnesses' signatures)
was not affixed to page 5 of 6 (containing Dr.
Castruccio's signature) at the time when it was signed.
In addition, the Estate argued that, even assuming that the
pages were not affixed to each other at that time, mechanical
attachment was not required under Maryland law. It contended
that the two pages could be sufficiently connected where they
appear to be internally connected as a single instrument.
The Estate's Motion on the Remaining Issues
the remaining issues, the Estate argued that the document was
indisputably valid, because Dr. Castruccio signed it in the
witnesses' presence, and because the witnesses, aware of
the document's contents, each signed their names in his
presence. The Estate pointed to the affidavits of Mr.
Greiber, Ms. Greiber, and Kim Barclay. Each of those affiants
averred that Dr. Castruccio signed the document in their
presence and announced that it was his last will and
testament. Each of the affiants also averred that Dr.
Castruccio "was of sound mind, fully able to understand
the paper he was signing, and [that] he did voluntarily and
freely sign his name to it."
Estate argued that the document carried a presumption of due
execution, based on the presence, spanning pages 5 of 6 and 6
of 6 of the document, of an "attestation clause"
reciting that the required elements of a validly executed
will were satisfied. This clause, the Estate argued, was
itself prima facie evidence of the will's presumed
validity, which shifted the burden to Mrs. Castruccio to
demonstrate, by clear and convincing evidence, that the facts
recited in that attestation clause were not true. See,
e.g., Van Meter v. Van Meter, 183 Md. 614, 618
(1944); see also McIntyre v. Saltysiak, 205 Md. 415,
Castruccio responded that the document contained
"multiple additional irregularities" that raised
questions about its validity. She questioned the
witnesses' credibility and "the role that Darlene
[Barclay] and Mr. Greiber played" in the preparation of
the will. She also questioned whether Dr. Castruccio
understood what he signed and whether that document and the
document submitted for probate were the same. She pointed out
that the will recited that Dr. Castruccio had initialed each
page, but that his initials do not appear on the document
(including the page that states that he had initialed each
Mrs. Castruccio pointed out that Darlene Barclay had
destroyed a flash drive, which "might" have
contained a file related to the will. Mrs. Castruccio argued
that Ms. Barclay's actions warranted an adverse inference
sufficient for the denial of the Estate's summary
judgment motion. In addition, she moved for sanctions against
The Circuit Court's Rulings
September 23, 2014, the circuit court granted the
Estate's motion for summary judgment on all issues and
denied Mrs. Castruccio's cross-motion for summary
judgment as to Issue F, concerning attestation.
denying Mrs. Castruccio's cross-motion, the court assumed
for the sake of argument that the pages of the will were not
physically attached to one another at the time of signing.
Nonetheless, the court rejected Mrs. Castruccio's
argument that because the witnesses had not signed on the
same page as Dr. Castruccio or on a page physically connected
to it, the will was invalid under Shane v. Wooley.
The court explained that "the focus should be on a more
holistic inquiry" into whether the document had been
properly attested, rather than whether "at a certain
point some or all of the pages were mechanically affixed to
each other." It characterized Mrs. Castruccio's
position as "exalt[ing] a rather mechanistic function
over an inquiry that should focus on a testator's
intent[.]" It declined to read Shane v. Wooley
to "creat[e] an engine of destruction" for a
"clearly unified document" that fully meets the
explicit requirements of the Estates and Trusts Article, but
lacks a staple.
granting the Estate's motion for summary judgment on the
remaining issues, the court concluded that the Estate had
established a prima facie case that the document was validly
executed. The court went on to conclude that Mrs. Castruccio
failed to produce the requisite clear and convincing evidence
to the contrary. The court specifically rejected Mrs.
Castruccio's contention that Ms. Barclay's
destruction of the flash drive supplied a clear and
convincing basis upon which the trier of fact could overturn
the will's presumed validity.
order entered on October 2, 2014, the court granted the
Estate's summary judgment motion as to all seven issues
and denied Mrs. Castruccio's cross-motion on Issue
appeal, Mrs. Castruccio presents several questions, which we
have consolidated and rephrased as follows:
I. Did the circuit court err in denying Mrs. Castruccio's
cross-motion for summary judgment and concluding that the
document was validly attested, where the testator and
witnesses signed on separate pages that were not
"physically connected" to each other?
II. Did the circuit court err when it determined that the
will was entitled to a presumption of due execution?
III. Did the circuit court err in granting summary judgment
in favor of the Estate without having specifically ruled on
whether sanctions should be imposed against Darlene Barclay