Wed | Dec 12, 2018

Laws of Eve | Rules for signing a will

Published:Monday | December 3, 2018 | 12:00 AM

To the ordinary onlooker, the rules that govern the execution of certain legal documents may appear to be unnecessarily complicated. For example, in executing a will the following rules apply:

1. Age

The testator must be at least 18 years of age.

2. Who signs first

The testator must sign before the witnesses do, and each witness must sign the will in the presence of the testator, although each witness does not need to sign in each other's presence.

3. If the testator has a challenge

- Blindness or illiteracy

Generally, where the testator is unable to read or write, whether due to blindness or illiteracy, there must be an indication on the will (called a marksman clause) to say that it was read to the testator before he or she signed or placed a mark on it.

- Physical incapacity

Further, if the inability to sign the will is due to the testator's physical incapacity, the will may not only need to be read to him or her, the marksman clause may need to also state that the document was signed by someone else on his or her behalf.

- Mental incompetence

If the testator is mentally incompetent, he or she cannot validly execute any legal document. However, if there is a Court Order in which a legal guardian has been appointed under the provisions of the Mental Health Act, with authority to execute documents on behalf of that person, the legal guardian may be able to sign the will.

There are many unusual situations that may arise for which no specific legal provisions exist, and the rule of thumb is to always ensure that the testator has capacity (legal, mental and physical), understands and approves the contents of the will that he or she is signing and, where necessary, that his or her signature is witnessed in the appropriate manner.

In Texas, USA, the Court of Appeals recently ruled (in estate of Luce) that a quadriplegic's will was valid although he could only communicate his instructions by blinking in response to leading questions and was unable to affix his signature to the document. The background to the case is that Luce, who had a 1998 will, became paralysed from the waist down and unable to speak after being involved in a very serious accident in October 2015. While in hospital, Luce's attorney assisted him to prepare.

After Luce passed away, his widow, despite there being pending divorce proceedings, attempted to admit his 1998 will to probate, while his sister filed an application to probate the 2015 will. The court admitted the 2015 will to probate on evidence that a medical examination conducted two days after the 2015 will was executed proved that Luce was fully competent and able to make his own decisions. The Court of Appeals upheld that ruling and reversed an order that had awarded costs to the widow.

I wonder how Luce's case would have been determined in Jamaica.

- Sherry Ann McGregor is a partner mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to​ lawsofeve@gmail.com or lifestyle@gleanerjm.com.