## Facts

- George Demaris, a 39-year-old bachelor, became seriously ill and was taken to Dr. Harold B. Gillis’s clinic in Milton, Oregon.
- While lying in a treatment room bed, Demaris asked Dr. Gillis to prepare a will.
- The clinic included a treatment room, an intervening waiting room, and a consultation room with a desk and typewriter; doors between rooms were left open during execution and attestation.
- Dr. Gillis typed a one-page will naming Demaris’s sister, Ida Fuller, as sole beneficiary, then returned to the treatment room, explained the will, and Demaris signed it in the presence of Dr. Gillis and Mrs. Gillis.
- After Demaris signed, Dr. and Mrs. Gillis went to the consultation room to sign as attesting witnesses.
- Mrs. Gillis signed at the desk in a position where Demaris could have seen her from the bed; Dr. Gillis signed at the same desk but outside Demaris’s direct line of sight.
- Relatives were in the waiting room and could observe the witnessing process.
- Days later, when told Mrs. Gillis signed as a witness, Demaris indicated he “knew that Doc did” as well, suggesting awareness that Dr. Gillis had witnessed the will.
- The will was admitted to probate; Demaris’s father contested, primarily claiming improper attestation; the circuit court dismissed the contest and sustained the will.

## Issues

1. Whether the statutory requirement that witnesses subscribe a will “in the presence of the testator” is met when a witness signs in an adjoining room beyond the testator’s line of sight, but with open doors and proximity allowing awareness through the testator’s senses.
2. Whether the will was properly executed and attested under Oregon law notwithstanding minor discrepancies in testimony and the physical arrangement of rooms.

## Decision

- The Oregon Supreme Court affirmed the decree sustaining the will.
- The court held the will was validly executed and properly attested, even though Dr. Gillis signed outside the testator’s direct line of sight.
- The court concluded the “presence” requirement was satisfied because the attestation occurred within the range of the testator’s senses and with the testator’s conscious awareness of what was occurring.

## Legal Principles

- Statutory requirements for will execution and attestation, including that witnesses subscribe “in the presence of the testator,” are mandatory.
- “Presence” does not require the witnesses to be within the testator’s visual range at the moment of signing if they are so near that the act is within the range of the testator’s senses and the testator knows what is occurring.
- The testator’s conscious awareness that the witnesses are signing is an indispensable element of the presence requirement.
- A request to prepare a will may carry an implied request that the document be duly witnessed.
- The presence requirement serves to prevent fraud and substitution; substantial fulfillment of that protective function supports upholding the attestation.

## Conclusion

The court upheld the will because the witnesses signed close enough, with open doors and circumstances showing the testator’s awareness, to satisfy the statutory “presence of the testator” requirement despite the absence of direct line-of-sight for one witness’s signature.


In re Demaris' Estate, 110 P.2d 571 (Or. 1941)