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How Can You Sign A Will, If You Are Physically Unable To Sign It?

Reasons to choose Wilson Browne

That may seem a contradictory statement but there may be instances where someone with the (mental) capacity to sign a Will, lacks the physical ability to do so. Bearing in mind that a Will needs to be signed to be valid, this poses some interesting questions.

What happens when you are unable to sign your Will?

There are circumstances in which a testator (a person making a Will) may be unable to sign, perhaps due to a disability such as blindness, paralysis or other physical impairment.

It is possible to direct someone else to sign the Will, but good practice suggests that a special type of attestation clause should be used. This special type of clause should make clear that not only has the testator been read and has understood the Will, but that they intend for it to be their Will and for that person to sign on their behalf.

A special attestation clause is not however a legal requirement, but its absence can prove problematic on death. It would be for the courts, as highlighted in the Non-Contentious Probate Rules 1987, to determine whether the testator did in fact intend for the Will to be their own and this could involve lengthy processes of seeking affidavit evidence from the attesting witnesses.

Although it is always optimal to have two independent witnesses and a further person (if required to sign on behalf of the testator), it is possible, as determined in Smith v Harris, for an attesting witness to also act as a signatory on the testator’s behalf. The Wills Act 1837 makes a witness to a Will competent to sign on behalf of the testator at their direction.

What if the testator signs, but can’t sign their name?

The law has established that any mark by the testator intended to be their signature is sufficient for the purposes of execution. For example, it has been held that a thumb print was sufficient to act as a signature where the intention of signing the Will was present. However, it would still be necessary for the testator to make the mark in the presence of the two independent witnesses who must be aware of the testator’s intention.

We would always suggest that you seek guidance before signing your Will. The team at Wilson Browne Solicitors are genuine experts, recognised by the Law Society, the Legal 500 ( a who’s who of the legal world) and other professional bodies.

Call 0800 088 6004 to speak to a member of the team.

Olivia Banks

Posted:

Olivia Banks

Trainee Solicitor

Olivia is a trainee Solicitor in the Private Client team based in our Northampton office.