Rubber stamps, marks and initials: are these valid signatures? They are if you are signing a will in Texas.
Let’s start with the basics. A will has to be signed by the testator (the person making the will) to be enforceable. There has been a lot of litigation over what constitutes a valid signature, and there are quite of few surprises in the resulting court decisions. The courts, which strive to uphold the testator’s indicated intent, have implicitly recognized that not every testator is literate or in good health.
The result is a body of law that strains the boundaries of common sense.
Have a will signed by initials only? That’s fine.
Testator only signed a “mark”? Acceptable.
Signature not in the testator’s own handwriting? No problem; the courts have upheld signature by rubber stamp and by typewriter.
What if the testator instructed someone else to sign the will for him? That works as long as the person signed at the testator’s direction and in his presence. The testator could indicate his direction by express words, affirmatively responding to a question, or by a mere gesture.
How about just having the notary sign the will? This is permitted but there are some required formalities. The notary has to be directed to sign by the testator, the signature must take place in the presence of a disinterested witness (someone who has no legal or equitable interest in any property affected by the will), and put some special verbiage under the signature.
What if there is a combination of methods, such as a will containing both the mark of the testator and a signature by another person. Valid.
A will should be signed at the end of the document, so what is the effect of the testator deciding to sign the will in the middle of the document instead of at the end? None. The placement of the signature in the will isn’t important as long it is somewhere in the document.
What if the testator doesn’t sign the will at all and instead signs the self-proving affidavit? This is problematic because the purpose of the self-proving affidavit is to circumvent the requirement that the witnesses appear in court for the probate hearing. After wrestling with this issue, the courts eventually decided on a compromise: the signature is valid and the will can still be admitted to probate, but the self-proving affidavit is not effective.
What if the signature is forged? Not acceptable.
Regardless of the type of signature, it still has to be witnessed. Texas requires that a will have at least two witnesses to “attest” and “subscribe” the will. That means they have to swear to the testator’s signature and then sign their own names to the will while the testator’s presence. While the courts may be inclined to press the limits on types of signature, they have shown no sense of similar indulgence on the two- witness rule. It is an iron-clad requirement.
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The information contained in this article is general information only and does not constitute legal advice.