A will has to be executed with the proper legal formalities. This includes having the terms of the will be in writing and signed by the decedent.
There have been a number of disputes as to what counts as a writing and what counts as a signature. The courts have developed a body of case law that explains what writings and signatures count.
For the signature requirement, one frequent question is whether a signature that is stamped on a will is valid. The court considered this in the Phillips v. Najar, 901 S.W.2d 561 (Tex. App.–El Paso 1995) for a signature made on a will with a rubber stamp.
Facts & Procedural History
This court case involves a will that was not signed by the decedent. The decedent was not able to sign the document given her physical condition.
Instead of signing the will, the decedent instructed the beneficiary of the will to place a rubber signature stamp to stamp his name on the will.
The decedent then placed two “X’s” on each side of the stamped signature.
The two witnesses to the will placed their initials next to the “X’s” to signify that they were made by the decedent.
The beneficiary named in the will filed an application to probate the will.
One of the decedent’s heirs contested the will. The appeals court had to decide whether the signature was valid.
The Signature Requirement
The signature requirement is found in Texas Estates Code 251.051:
Sec. 251.051. WRITTEN, SIGNED, AND ATTESTED. Except as otherwise provided by law, a will must be: (1) in writing; (2) signed by:(A) the testator in person; or (B) another person on behalf of the testator: (i) in the testator’s presence; and (ii) under the testator’s direction; and (3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
The dispute in this case focused on whether someone signed the will on behalf of the decedent.
The two witnesses were not instructed to sign on behalf of the decedent. But what about the rubber stamp? Does the rubber stamp count as a signature?
The Rubber Stamped Signature
The court concluded that the rubber signature stamp was valid:
we think it a small logical leap to conclude that she may also instruct another person to affix her name to a document with a rubber stamp, especially when, as here, she gave the instruction in front of all witnesses and expressed to them her testamentary intent.
The court went further and noted that the “X’s” alone were sufficient signatures for the will. Thus, the will was valid eve if the will do not have the rubber signature stamp.
This case stands for the proposition that a decedent who cannot physically sign a will has a few options for executing a will. This is important for those who need to implement their estate plan but are not able to sign documents.
The decedent’s signature is valid as long as it is clear that he intended to sign the will. An affirmative act, such as making a mark with a pen on the will, is sufficient. The same goes for asking someone to sign the will for the decedent.
While it is not ideal or recommended, even a rubber stamp signature placed on the will by another person can work. The court will need evidence that the decedent intended the stamp to be their signature. This evidence can include testimony from the witnesses and other persons who were present during the will signing.