For many reasons, a last will and testament can be a very contentious issue.
Now imagine a will is left unsigned.
As you can understand, this would be a potentially explosive problem to have, especially if there are large assets to be considered.
It does happen, however. If you find yourself dealing with a will that was left without a signature, keep reading for the relevant information you need to know.
What is a Will?
Put simply, a will is a document that verifies how an adult wants their legal assets handled upon their death. Obviously, when an individual passes away, their assets need someone to take up ownership in their absence. So a will works to provide how this will be done—sometimes they’re all left to a single individual, sometimes many, sometimes assets are even bequeathed to an institution.
In order to be valid, the deceased must have signed the will and it needs to be notarized. Other laws that may affect the validity of various types of wills differ from state to state.
While only the most recent will is valid, someone can have had more than one.
For example, they may draft a new one after coming into new money or acquiring a new asset. After a divorce, people will often draft new wills to remove their former spouse. No matter the reason, a new will must follow the formal, legal process though, including a signature.
When a valid will is lacking, all a person’s assets generally go to their spouse and/or closest kin. A large chunk of it, however, will go to the government in the form of estate tax.
What Happens If a Will Isn’t Signed?
It’s rare, but it can happen that a will is left without the proper signature. While many people have personal lawyers, others simply hire one for the sake of developing a will. In that situation, it’s possible that the individual simply lost their own copy of the signed will, but may have had several copies in their possession. Again, this is not a typical occurrence.
By itself, a will that lacks the deceased’s signature is worth less than the paper it was printed on. There would be a number of ramifications if a judge were to set a precedent that suggest otherwise.
The Harmless Error Rule
However, the “Harmless Error Rule” does provide an exception. The court will enforce a will that lacks a signature if there is “clear and convincing evidence that the decedent intended the document” as their final wishes.
Put another way, a will can be enforceable, despite lacking a signature, if it can be proven that said signature was a formality—that the will is exactly what the deceased wanted.
That being said, establishing the intentions of someone who has passed away is no easy task. This is why it’s always a good idea for individuals to review and attest to their estate planning goals every few years to firmly establish what their intentions are. Of course, it’s also a good idea to sign a will and keep it in a safe place.
Another example of an unsigned will is a “deathbed will”, so called because they are drafted during an individual’s last moments. Deathbed wills are the most challenged kind, even when they are drafted in front of witnesses. Usually the grounds for a challenge are that the deceased lacked the proper mental capacity when they were drafting it.
A last will and testament is one of the most important documents a person will ever draft. As such, it is extremely important that they are signed and kept in safe keeping. While it is possible to enforce a will that lacks the proper signature, it’s not easy and very rare.
Want to find out more? Contact one of our attorneys to have your will created or checked. Or, click here to read a summary of a case involving an unsigned will.