Making Your Mark: Using a Fingerprint When a Testator Cannot Sign the Will

By  Jennifer F. Hillman, Esq. 

We have all seen the movies where an illiterate individual signs an important document with an “X”.  Even literate clients may have difficulty signing a document due to a severe physical impairment.  Compliance with the requirements of New York Estate Powers and Trusts Law (“EPTL”) § 3-2.1 concerning due execution of a will are particularly challenging for estate practitioners under these circumstances. 

Pursuant to New York General Construction Law § 46, the term “signature” includes “any memorandum, mark or sign, written, printed, stamped, photographed, engraved, or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.  

A recent decision in the Kings County Surrogate’s Court addressed the issue of whether a decedent’s fingerprint placed at the end of the propounded will satisfies the due execution requirements of NY EPTL § 3-2.1.  In Matter of Albert, N.Y.L.J., April 23, 2013, at 25 (Sur. Ct. Kings County), the testator had been suffering from debilitating cancer and was unable to write at the time of the execution.  Upon review, the Court noted that signature by fingerprint is more “individual, reliable and effective than one made by a mere cross mark.”  Id.  The proponent of the will was sufficiently able to demonstrate that the decedent intended to use his fingerprint to sign the will, as well as other legal documents prepared around the same time.  She was also able to prove that the propounded instrument was duly executed pursuant to EPTL § 3-2.1, that the decedent was competent, and that there was no undue influence exerted on the decedent at the time of the will execution.  The will was admitted to probate. 

The use of fingerprints is certainly an interesting alternative when a testator cannot sign their name.  In fact, it may be preferred to utilize a fingerprint, rather than having another individual assist the testator with their signature by guiding their hand.  (See my prior blog entitled “A Guiding Hand: Assisting an Ailing Testator with Signing Their Will” dated March 4, 2010).  Above all, it may be most preferred for the testator to sign their name – unassisted – to the best of their ability no matter how messy or unrecognizable it may be.  Under any of these circumstances, an attorney-draftsman should make sure that the witnesses sign an attesting witness affidavit in accordance with New York Surrogate’s Court Procedure Act (“SCPA”) §1406 which accurately explains the circumstances of the execution.  An attorney-draftsman may also consider revising the attestation clause to conform to the circumstances that occurred.

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Jennifer F. Hillman is partner at the law firm of Ruskin Moscou Faltischek, P.C. in Uniondale, New York where her practice is focused on trusts and estates litigation.  She can be reached at jhillman@rmfpc.com.

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