in the presence of the testator
- in the presence of the testator
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A signing of the will within the view of the testator, such view being uninterrupted and the testator conscious. A signing within the actual range of vision of the testator. 57 Am J1st Wills § 338.
It has been held that the words "in the presence of the testator," in a statute relating to the execution and attestation of wills, do not necessarily mean that the testator and the witnesses must be in the same room, or that he must have actual sight
or inspection of the process of signing by the witnesses, but there is respectable authority to the contrary. Cook v Winchester, 81 Mich 581, 46 NW 106.
Due regard must be had to the circumstances of each particular case, as it is well settled by all the authorities that the statute does not require absolutely that the witnessing of the signing by the testator must be done in the actual sight of the testator, nor yet within the same room with him. If the witnesses sign within his hearing, knowledge, and understanding, and so near as not to be substantially away from him, they are considered to be in his presence. Re Will of Cunningham, 80 Minn 180, 83 NW 58.
Ballentine's law dictionary.
Anderson, W.S..
1998.
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