What Happens If the Testator Has a Physical Inability to Sign a Will?

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What Happens If the Testator Has a Physical Inability to Sign a Will?

Sometimes when our estate planning attorneys are working on a will here at the Law Offices of James C. Shields, we're confronted with a client with a physical inability to sign a will. It can be for a variety of reasons, often health related, but we want you to know that this is not an obstacle to having a valid will.

If someone is physically unable to sign a will, there are options. If possible, the testator - person creating the will - can sign with something as simple as an X. If they cannot, however, they are permitted to direct someone else to sign the will on their behalf.

There are more stringent requirements for wills than the signature. These requirements will be required in most states. Generally, the will needs to be witnessed and signed by two disinterested (in other words, non-inheriting) witnesses. If a witness has an interest in the will and it is contested, that witness may lose his/her share of the inheritance. The testator needs to sign the will, or direct someone to sign the will on her behalf, in the presence of both witnesses at the same time.

The testator must also have the capacity to create a will. It is not particularly difficult to have that capacity; the requirements only apply when the will is signed. Therefore, a person can have rare moments of lucidity and still have testamentary capacity. At the moment the will is signed, the testator must understand a few requirements, including what property they have, how their property is to be distributed under the will, and to whom they would normally include in the will (most people will include spouses and children, for example).

In conclusion, an inability to sign is no obstacle to creation of a will, but there are some formalities you'll need to observe. There are also other, more important, requirements of which to be aware. If you're thinking about making a will, or need to arrange to have a will written for a loved one, contact our Torrance estate planning lawyers for a consultation.

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