Wills without Signatures

By Horton, David | Boston University Law Review, September 2019 | Go to article overview

Wills without Signatures


Horton, David, Boston University Law Review


Introduction

In 2010, Bright McCausland, who was blind and living in a nursing home in West Virginia, described his estate planning wishes to his nephew, Douglas Brown.1 McCausland selected an executor, named beneficiaries, and gave instructions about the management of his real property.2 Brown transcribed McCausland's words.3 The next day, in front of McCausland and two nursing home employees, Brown read this document aloud.4 After McCausland confirmed that he approved of its contents, the caregivers signed it as witnesses.5 Yet McCausland never signed the paper himself, perhaps because he could neither see nor write.6

In 2008, Louise Macool, a New Jersey resident, scheduled a meeting with her lawyer, Kenneth Calloway.7 Macool's husband of forty years had recently died, and she wanted to update her estate plan by leaving a greater share of her property to her nieces, Mary Rescigno and Lenora Distasio.8 To prepare for the appointment, Macool handwrote her wishes on a piece of paper.9

Using Macool's memorandum and soliciting her input, Calloway dictated a draft will into a recording device.10 His version differed in several minor ways from Macool's notes.11 For example, although the document Macool had created named Rescigno's grandchildren as contingent beneficiaries, Calloway's spoken instructions did not.12 Likewise, Macool's notes stated that she wanted "to have the house to be left in the family Macool," but Calloway's recording merely asked three beneficiaries "to try to keep the home in the family as long as possible."13 Calloway then gave the tape to his secretary, who typed up a hard copy that was marked "[r]ough" in the top-left corner.14

Macool left Calloway's office to have lunch.15 Calloway expected her to sign the will shortly thereafter.16 Sadly, an hour after the meeting, Macool died.17

In 2016, Mark Nichol committed suicide in Queensland, Australia.18 Nichol's wife, Julie, who had recently left him, discovered his body in a shed next to his cell phone.19 Julie asked one of her friends to look through Nichol's contacts to see whom to inform about the tragedy.20 The friend found a text message that Nichol had typed, but not sent, to his brother Dave.21 In the draft message, Nichol gave his property to Dave and his other brother Jack; mentioned his problems with Julie; provided his bank account PIN, initials, and birthday; and concluded with the words "[m]y will" and a smiley face.22

Under traditional law, there is no such thing as an unsigned "will."23 Since 1837, the process of drafting a testamentary instrument has taken place in the shadow of the Wills Act.24 This statute, which emerged in England and migrated to America, Australia, Canada, and New Zealand, requires posthumous dispositions of property to be written, signed by the testator, and subscribed by two witnesses.25 In addition, about half of the American states recognize holographic wills, which must be largely in the testator's handwriting and signed by her.26 The common thread in these tests is the testator's signature. This insignia establishes the authenticity of a will and also distinguishes it from a "preliminary draft, an incomplete disposition, or haphazard scribbling."27

Until recently, signature was the exclusive way for testators to assent to a will. This made wills law unique. Other fields allow parties to consent to a transaction through a variety of mechanisms. People form contracts orally or by conduct.28 Donors consummate gifts through actual, symbolic, or constructive delivery.29 Courts decide whether someone has entered into a common law marriage or equitably adopted a child-factors that can greatly impact the division of their property after they die-by drawing "inference[s] from . . . circumstantial evidence."30

Conversely, with wills, a missing signature has traditionally brought the search for assent to a screeching halt. For example, although Bright McCausland verbally approved of the unsigned document that his nephew transcribed, the West Virginia Supreme Court refused to enforce it. …

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