What Happens if Someone Cannot Physically Sign a Will?
November 21, 2022
Due to injury or a medical condition, a person may be physically unable to sign a last will and testament despite having full testamentary capacity. What steps can a physically disabled person and their family take to allow that person to have a valid last will and testament when that person cannot physically sign their will?
What Happens When a Person Has the Cognitive But Not Physical Capacity to Sign a Will?
Under New Jersey law, a person must have testamentary capacity to execute a last will and testament. Testamentary capacity is generally defined as the ability to understand the nature of one’s assets and estate, identify beneficiaries, and understand the consequences of executing a will or other estate planning documents. Since testamentary capacity is a cognitive or mental issue, it is possible for someone to be physically disabled to the point that they cannot sign a document despite having full use of their mental faculties.
New Jersey’s Signature Requirements for Wills
New Jersey law requires that a will be made in writing. A written will must be executed by both the testator (the person making the will) and by two witnesses who either witnessed the testator sign the will or acknowledge their signature on the will. But the will statute states that a will can either be signed by the testator or in the testator’s name by some other person at the testator’s direction and in the testator’s conscious presence.
It is a longstanding aspect of the law that a person’s signature does not need to be their name. Instead, a signature can be any mark that a person makes on a document to indicate their assent to the document. This rule allows individuals who don’t know how to write, for example, to sign legal documents. Therefore, a person suffering from severe disability who may not be able to sign their name in cursive but who has the physical capacity to make a mark on a written document can sign a last will and testament by their own hand.
Steps to Take to Ensure the Validity of a Will When the Testator Could Not Sign
However, if a person creating a will lacks the physical capacity to make any mark or signature on the will, New Jersey law allows them to direct another person to sign the will in the testator’s name, so long as the act of signing the will occurs in the testator’s conscious presence. But other steps can also help ensure the validity of the will and avoid complications when the will is submitted for probate after the testator’s death:
- If the testator can sign the will with a mark that is not their name, the will’s self-proving affidavit should expressly state that the witnesses and notary personally observed the testator make the mark on the will; if the testator required physical help from another person to make their mark, the affidavit should note that as well.
- If the testator needs to direct someone else to sign the will in the testator’s name, the self-proving affidavit should expressly note the testator’s physical incapacity and state that the testator wanted to sign the will as their voluntary act and identify the person who signed the will for the testator.
- You may also want to consider videotaping the signing session so there is no ambiguity about what occurred.
Contact a Fort Lee Estate Planning Attorney for an Estate Planning Consultation in New Jersey
You deserve to have peace of mind about whether your loved ones will be taken care of after you are gone. The best way to plan for your future, and the future of your close family members or other loved ones, is to speak with an estate planning lawyer about your specific circumstances and financial situation. The experienced New Jersey estate planning attorneys at Choi Law Firm assist clients with wills, trusts, and other estate planning documents. We represent clients in Bergen County, Hudson County, Queens County, NY, Long Island, and throughout New Jersey and New York. Call us anytime at 201-613-5557 or fill out our online contact form to schedule a confidential consultation. Our main office is located at 1372 Palisade Avenue, 2nd Floor, Fort Lee, NJ 07024, and we also have offices located in Bayside, NY.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
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