Can I Make a Will if I am Physically Incapable of Signing a Document?
A Will is an important document. It allows you to specify who will receive your property when you die.
To be valid, certain formalities must be followed. For example, if you want to create a holographic Will, it must be completely in your own handwriting and signed by you. A typewritten Will must be signed by you. Additionally, at least two credible witnesses over the age of 14 must sign it in your presence.
But what if a disability leaves you physically incapable of actually signing a Will? Can you still satisfy the signing requirement for an attested Will?
The short answer is Yes.
The Texas Estates Code provides that a testator can direct another person to sign a Will in the testator’s presence. The testator can indicate his direction verbally, by an affirmative response to a question, or through a gesture.
Also, the Texas Government Code authorizes a notary to sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization if the individual directs the notary to do so in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed. The notary must require identification from the witness and must write beneath his signature something substantially similar to the following: Signature affixed by notary in the presence of (name of witness), a disinterested witness under Section 406.165, Government Code.”
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January 22, 2016 at 2:33pm
[…] Can I Make a Will if I am Physically Incapable of Signing a Document? – Rania Combs @raniacombs of Rania Combs Law in […]
November 23, 2018 at 10:51am
I signed my husband’s name to his will in his presence and at his direction in front of 2 witnesses, who also signed. Should I indicate that his signature was signed by me?
November 28, 2018 at 7:07pm
A paper by Professor Gerry Beyer suggests the following: “A proxy signature must meet two requirements to be valid. First, the proxy must place the testator’s signature on the will at the testator’s direction. Second, the proxy must sign in the testator’s presence. “[T]he best form of signature by proxy is to write the testator’s name ‘by _______ (the proxy),’ and perhaps following this with a statement that it was written by testator’s direction and in his presence.” Thomas E. Atkinson, Law of Wills § 64 (1953).”