In re Demaris’ Estate
166 Or. 36, 110 P.2d 571 (1941)

  • Demaris was a sick man who had no spouse or kids. While in a clinic, he told his doctor that he wanted to leave everything to his sister Ida.
    • Demaris had a number of other siblings and a living father, but didn’t get along with them because of family history.
  • The doctor, Gillis, typed up a will leaving everything to Ida. Then he brought the will into the room Demaris was staying in and had him sign it. Then he went out into the hall, and the doctor and his wife both signed as witnesses.
    • There were some questions of fact, but it was generally believed that Demaris did not physically see the witnesses sign.
  • Demaris never recovered. Demaris’ father contested the will.
    • Shortly afterwards, Demaris’ father died, and his evil brother Arch contested the will as his father’s heir.
      • The father left Ida $1 in his will (the jerk).
    • If the will were declared invalid, then Demaris’ estate would pass through intestate transfer laws, which would give all the money to Demaris’ father (and then probably to Arch…)
  • The Trial Court found for Ida and said that the will was valid. Arch appealed.
    • Arch unsuccessfully argued that, under Oregon State law, the witnesses (aka the attesters) were required to sign “in the presence of the testator.”
      • Testator is a fancy word for the guy making the will.
  • The Oregon Supreme Court affirmed.
    • Arch’s argument was not that Demaris didn’t intend to sign, or that there was anything fraudulent in the will, but solely that it did not meet the letter of the law.
    • The Oregon Supreme Court looked to the specific language of the Statute, and looked to how other courts had interpreted similar language and came to the conclusion that “in the presence of” meant only that the testator was aware of the attesters signing, not that he had to physically see them sign.
      • Since Gillis and his wife signed the will in the hallway mere feet from the Demaris’ bed, that was close enough to count as being “in the presence of.”
      • The Oregon Supreme Court said that if the wording was taken to mean see, then how could a blind person ever write a will?
      • This doctrine is called the conscious presence test.
    • The Oregon Supreme Court found that the Gillis’ had substantially complied with the intent of the Statute, and to hold otherwise would frustrate the intent of the Statute as well as the testator.
  • Other courts have held jus the opposite, going so far as to invalidate wills because the testator wasn’t looking directly at the attesters, even though they were both in the same room.
  • Under the common law, in order for a will to be valid, the witnesses must establish presence. There are three elements to establishing presence:
    • The witnesses saw the testator sign.
    • The testator saw the witnesses sign.
    • The witnesses saw each other sign.