Updated: Oct 12, 2021
This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 6, 2020.
Dear Mr. Premack: My mother has had a stroke and gone through rehab. She is clear of mind and her doctor agrees that she is capable of making her own decisions. She needs to update her Last Will and Testament, but it is very difficult for her to hold a pen. She can only make a squiggle on the page that looks nothing like her prior signature. She had an old signature stamp which she lets me use to sign checks to pay her bills. Can we use the rubber stamp to sign her name to a new Will? – C.T.
When a person is mentally capable of understanding and making a Will, but is at the same time physically incapable of signing, what does Texas law allow?
First, the Texas Government Code allows a notary to sign for the physically incapable person. There are a variety of pre-conditions. The person must be unable to sign and unable to make a mark. The person must “direct” the notary to sign for them. The notary must sign in the presence of the person, and in the presence of a disinterested and properly identified witness. The witness must sign as a witness. The notary must include a required disclosure that it was signed using the Government Code provision.
You said that your mother cannot sign her old signature, but can make a squiggle on the page. The above law requires that she be unable to sign and be unable to make a mark. A mark is any notation that is intended to act as a signature, most stereotypically thought of as making an X on the page. But we have all seen and many of us have signatures that look nothing like the letters that spell out our names. All signatures are individualized, and are routinely accepted as signatures even if they have no clear letters of the alphabet.
Consequently, your mother’s squiggle should be legally allowed to act as her mark. Since she can make that mark, she cannot use the Government Code provision that allows a notary to sign for her under her direction.
Using a mark that looks nothing like a prior signature, though, must be done carefully. Because she wants to sign a Will, there must be at least two independent witnesses who watch her sign and who sign in her presence. There should also be a notary who acknowledges the signatures and uses the proper legal wording to make the Will self-proving under the Texas Estates Code. Further, the Will should clearly state that the signature is a mark, and that fact should be acknowledged in writing by the witnesses and the notary.
You ask whether your mother’s rubber stamp can act as her signature on a Will. The legal answer re the stamp in Texas is not clear as this issue has not been specifically addressed by a statute or by a published court decision. Because using a stamp is not specifically authorized, the safest position to take is that a signature stamp is NOT a legally valid way to sign a Will. The closest court case, decided in 1995, involved a woman who asked the notary to use the rubber stamp on the Will, but who then took a pen and made an X next to the stamped signature.
The court decided that the X was her mark on the Will, and that the rubber stamp could be ignored. The court indicated that if the X had not existed, it would have entertained the idea of upholding the rubber stamp – but that since the X did exist it did not need to decide if the stamp alone would have been sufficient.
Since you and your mother, and the lawyer who will be writing the Will and supervising the Will’s signing, do NOT want to be litigation test cases, it is best to avoid use of the rubber stamp. Your mother should make her mark pen-in-hand on the new proper Will, and should avoid the challenges and litigation that could result from reliance solely on the rubber stamp.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.