We think of an unsigned ‘will’ as an oxymoron. Since 1837, the Wills Act has required testators in Anglo-American legal systems to memorialize their last wishes in a signed writing. But recently, several American states have adopted an Australian innovation called harmless error, which validates a botched attempt to make a will if there is strong evidence that a testator intended it to be valid. Thus, in these jurisdictions, the testator’s signature is no longer mandatory. Meanwhile, decedents have started making wills in formats that do not permit ‘wet’ signatures, such as e-mails, text messages and word processing files. These trends raise the same question: when, if ever, can a testator assent to a will through her words or conduct? This Article explores the topic of wills with missing or unorthodox signatures. It begins by analyzing a neglected body of precedent on point that spans centuries and countries. First, before the Wills Act, testators could bequeath personal property in unsigned writings. Accordingly, ecclesiastical courts in England and early American judges routinely decided whether a decedent had approved of an unexecuted dispositive instrument. Second, and more recently, dozens of Australian courts have considered whether to apply harmless error to unsigned and electronic wills. These cases, which have reached wildly different conclusions, vividly illustrate the costs and benefits of relaxing the signature requirement. The Article then draws insights from the unsigned will jurisprudence to propose a partial exception to the signature mandate. Traditional law treats the absence of a signature as conclusive proof that a decedent lost her nerve or changed her mind. However, the unsigned will cases reveal that the true culprit is often the fact that a person passed away or lost mental capacity shortly before she could put pen to paper. Accordingly, under what the Article calls the ‘momentum theory’, courts should enforce written expressions of dispositive wishes when there is clear and convincing evidence that a testator was on the verge of executing a will that memorialized them. This safe harbor for testators whose estate planning efforts were interrupted by forces outside of their control would improve outcomes in several common (or soon-to-be common) kinds of disputes, including those involving notes for future wills, drafts that the testator never read, and digital documents.
Horton, David, Wills Without Signatures (August 17, 2018). Boston University Law Review, volume 99, 2019.