By Cassandra Payton

Toward the end of their formal Will-signing appointment, many clients stare at the signature line on their Will, pen in hand, and ask: “How should I sign”?  The formality of the document, the presence of witnesses, and the gravitas of signing this important document impresses many clients with the feeling that their signature should be especially formal, special, lengthy, or fancy.

The practitioner’s response should always be, firmly, “however you normally sign.”

In the case of Wilson v. Franks (2023), the Court of Appeals of Texas reviewed a trial court decision in which a deceased person’s signature on a supposed handwritten Will was under heavy scrutiny. At trial, the question presented was: Did the deceased person really sign this document?  Other documents that the deceased had signed during his life were presented as evidence in the case and those signatures were compared with the alleged signature on the purported Will. The appeals court (based on the limited information before it) upheld the trial court’s decision to reject the signature.  The Will was thrown out because the signature was unlike that person’s signature on other documents.

If you, with the best of intentions, use a “special” signature on your Will, the effect actually can be counterproductive.  A different signature (even a “more formal” one) could cause the signature to be unrecognizable as “yours” in the event your family members and friends are called to testify to its authenticity.  Even if you normally sign documents with an “x”, that’s how you should sign your Will. It needs to be clear that the signature was placed by you, and using your regular signature can help affirm that you intended to make your mark.

Many practitioners require clients to use a blue ink pen, and often will provide one at the beginning of a Will signing appointment. Why? It is important to be able to tell whether a testamentary document is original.  In fact, many probate courts (including all three of the statutory probate courts in Dallas County) utilize a printer’s loupe and a light table to examine documents that have been filed with the Court as “original” Wills, to confirm whether they truly bear original ink signatures.

What about using an electronic signature, digitally verified? Isn’t this 2024 and post-COVID where electronic signatures are commonplace?  Actually, signing a testamentary instrument has such a profound effect that Texas law still does not authorize any manner of signature on testamentary documents other than a “wet” signature inked by the Testator.

Electronic signatures, while widely used and valid for signing many other types of documents, are not valid for signing Wills, Codicils, and Testamentary Trusts under Texas Business and Commerce Code Section 322.003(b)(1). Certain bills have been introduced contemplating the creation of electronic estate planning documents, such as SB 1779 (which died in committee), but none have been adopted.

At Cantey Hanger LLP, every step from initial intake through the final signing appointment is done with utmost care and attention to protecting the planning process and aimed at ensuring that the final product can withstand even the highest level of scrutiny.

In this age of electronic signatures, DIY online document production, and even generative AI, don’t take chances with your estate plan.  “Getting your Will done” is more than obtaining a final product; it is being guided through the planning process, asking important questions, and avoiding pitfalls. Consult an experienced estate planner and be guided around potential pitfalls, walking away with a meticulously-crafted, defensible estate plan.