What to Do When a Person Cannot Physically Sign a Last Will and Testament

HNWEstate Planning, Last Wills and Testament

Last WillRecently, a client wanted to sign her Last Will but because of a stroke and inability to speak; she was unable to sign it.   I had previously met with the client, had discussed in detail her Estate plan and prepared the Will in accordance with her directives.  I transmitted a copy of the Will for her final review and approval and we received a confirming telephone call from her that she wished to schedule a signature session but then the unforeseen took place and she suffered the stroke.

The good news is that the client (essentially) recovered her cognitive capabilities and wants now more than ever to sign the Will but physically she is unable to sign her name and is unable to speak.   Thus, the issue of what to do when a person wants to sign their Will but is physically unable to do so.

The solution comes from New Jersey Statute NJSA3B-3.2 which addresses the signature requirement(s) of a Last Will.  The Statute simply requires the Testator to either sign it or someone else can sign it in “the Testator’s conscience present in the Testator’s direction”.   If the Testator signs with their mark (i.e. an “X”), it is considered an acceptable signature, and this holds true even if somebody helps them.  However, in the Self Proving Affidavit, I discussed putting in language indicating that the witness and notary personally observed Testator make her mark with the assistance of a person at the Testator’s direction to ensure the circumstances surrounding the signature were memorialized.

This statute also persuaded me to amend the Self Proving Affidavit accompanying the Will so that it would be easily admitted to Probate.  So I amended the Affidavit to recite the person’s physical incapacity, that she understood and wanted to sign the Will as her free and voluntary act and that she was being assisted by a person who was present with me as well as the other witnesses to confirm that the Will accurately recited her intentions.

I also decided to prepare a memo to the file and have contemplated taking an actual videotaping of the signature session.  This process may be appropriate if you anticipate a future dispute concerning a Will or the capability of its creator to sign the document given their physical limitations.

To discuss your NJ estate planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Planning Law Attorney

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