A GUIDING HAND: Assisting An Ailing Testator With Signing Their Will

A GUIDING HAND: Assisting An Ailing Testator With Signing Their Will

 

     The heirs of Melvin Simon, the billionaire shopping mall magnate, are embroiled in a bitter estate struggle contesting a will signed by Mr. Simon seven months before his death.  Simon's eldest daughter claims there was undue influence because Simon's hand was guided by a financial planner as he signed the revised will.  Simon's daughter claims this assistance was evidence he signed the document under duress.  However Simon's second wife claims Simon made "his own voluntary decisions"; he requested assistance because he was ailing and unable to sign his name, and did not want to sign the document with an "X".  See Kris Hudson and Rachel Emma Silverman, Mall Heirs Battle Over Will, Wall Street Journal, February 10, 2010.

 

     These specific claims will play out in the Hamilton County Superior Court in Indiana; however allegations regarding assisted signatures are an interesting factual scenario, and a reality for some elder law and estate planning practitioners in New York. 

 

     Under EPTL 3-2.1(a)(1), the testator must execute a will by signing it or by having another person sign his name "and by his direction."  If a testator who is physically unable to sign his or her name requires assistance, she may call another to her aid even to the extent of holding her hand and guiding it.  Matter of Kearney, 69 A.D. 481, 74 N.Y.S. 1045 (2d Dep't 1902); see also Matter of Morris, 208 A.D.2d 733, 617 N.Y.S.2d 513 (2d Dep't 1994). 

 

     The question whether a signature is assisted or controlled does not turn on the extent of the aid, but rather whether the act of "signing was in any degree an act of the testator, acquiesced in and adopted by him."  Matter of Bernatowicz, 233 A.D.2d 838, 649 N.Y.S.2d 625, 626 (4th Dep't 1996) quoting Matter of Kearney, 69 A.D. 481, 74 N.Y.S. 1045 (2d Dep't 1902).  "[F]or in such a case he simply summons outside physical power to supplement his impaired strength." Matter of Kearney, 69 A.D. 481, 483, 74 N.Y.S. 1045 (2d Dep't 1902). 

 

     Kearney involved a deathbed will.  The doctor treating the testator called in the attorney upon learning that the testator did not have a will.  The testator attempted to sign the document, but was unable, at which time the attorney asked if he wanted assistance.  The testator replied yes, and the attorney guided the hand, without touching the pen. 

 

     Upon review, the court found that the first two letters of the testator's signature were faint and tremored, indicating to the court that the testator made some initial attempts to sign the document - consistent with the statements of the witnesses.  After reviewing some other claims, the court found no evidence of undue influence, and affirmed the Surrogate's Court decision sustaining the will and admitting it to probate. 

 

     In another interesting old case, Matter of Oliver, 126 Misc. 511, 214 N.Y.S. 154 (Sur. Ct. Westchester County 1926), it was contested whether the will signing even occurred based upon the circumstances and the witness testimony.  The smooth signature of the testator was contrary to other contemporaneous signatures by the testator showing a tremor. 

 

     The witnesses, including the testator's servant who received a substantial bequest under the contested will, claimed the reason for the smooth signature was because the testator requested and received assistance in signing the document.  However, expert testimony showed that the signature was inconsistent with two persons attempting to write, especially when both the testator and the guider were standing.  There would be a conflict of movement impulses resulting from two different writing styles.  Id. 

 

     The will was denied probate, and the court directed that all testimony be forwarded to the Westchester County District Attorney for his analysis and consideration. Id.     

 

     Certainly, it is preferred that the testator affix their own signature to their will.  However, if a testator is ailing or otherwise unable to sign their name to a will, an attorney draftsman has several alternatives: 

 

  1. the testator may sign with an "X", provided the testator clearly showed that he intended the mark to be his signature for the purpose of executing his will (Matter of Cervini, N.Y.L.J., Dec. 15, 2009 at 34, col. 3);
  2. the testator can ask someone else to sign his or her name to the will, as long as the signer's name, address and signature are also on the will, and the signer is not counted as one of the necessary attesting witnesses.  See EPTL 3-2.1(a)(1)(c); or
  3. the testator can ask someone else to assist him in making his signature.

 

Please note, the EPTL does not specifically allow utilizing an "X" mark, or assisted signatures, however these are allowable in practice.  

 

     If any of these alternatives are utilized, the attorney draftsman should revise the attestation clause to correctly state the factual circumstances, including that the testator requested and was then assisted in signing the will and the other particulars of the execution procedure.