Also known as: in-presence test · in presence tests · presence test · in-presence requirement
Written by attorneys · grounded in primary & secondary sources — see below
A standard used to determine whether a witness has signed a will within the testator's presence. The test is satisfied when the act of signing occurs within the range of the testator's senses such that the testator could perceive it through ordinary awareness and observation if attentive.
Ingrid Innes signed her will at her desk in the front office of her company while one witness watched and signed beside her. The second witness then carried the document down the hall into a separate records room and signed it there. Ingrid remained at her desk engaged with other matters and could neither see nor sense the second witness signing.
Isla Ireland directed her neighbor to sign her name on the will while she remained in bed. The neighbor took the document into an adjacent room to write the signature. Isla continued speaking with the neighbor throughout the process and remained aware of the signing act as it occurred.
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The test requires that each witness sign within the testator's general awareness and range of senses so the testator could perceive the act if attentive. Physical proximity in the same building or suite alone does not satisfy the requirement when the signing occurs in a separate room outside the testator's observation or knowledge.
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No. Courts applying the conscious presence test hold that being in the same suite of offices is insufficient when the witness signs in a separate room down the hall outside the testator's general awareness and possible observation.
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Yes. A third party may sign the testator's name if the testator directs the act and the proxy signs within the testator's conscious presence. The test rejects a strict line-of-vision requirement in favor of general awareness.
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The attestation by that witness is defective. The will fails the statutory execution requirements even if the other witness signed properly, because both witnesses must comply with the presence rule.
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