Assisted Signatures in the Elder Law Setting

This is a reprint of an article co-authored by Jim D. Sarlis, Esq., which was originally published at: New York State Bar Association, Elder Law Attorney, Winter 2006, Vol. 16, No. 1, p. 81

Assisted Signatures in the Elder Law Practice: What Constitutes Execution of a Document When the Client Needs Help Holding the Pen

by Jim D. Sarlis and Lori R. Somekh

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We who deal with older clients are often faced with situations where it is a challenge for our client to actually hold a pen and sign his or her name to a document. This can lead to uncertainty regarding how to best handle this situation. This article is intended to help clarify the situation and offer some guidance.

Assume the following facts: An elderly seller, mentally sound but physically feeble, executes a deed; his hand is guided as he places his name on the deed and the person who guides his hand writes out the seller’s name in a manner that bears no resemblance to the seller’s customary "signature" from long ago. There is no issue as to the client’s mental capacity: based upon the view of the witnesses present, it is seller’s intention to sign. The signature is notarized. The instrument in question is signed in New York and, by its terms, New York law governs. Is the execution of the deed under these circumstances valid? Would the execution withstand an objectant’s allegations of forgery or other wrongdoing?

The execution of a deed (i.e., a writing conveying real property) is universally required in all United States jurisdiction [1]. In New York, the governing law is Real Property Law §243 which requires that a deed conveying real property must be signed by the grantor.[2] The issue is: What constitutes a "signature"? The statutory definition of "signature" is found in New York General Construction[3] Law §46, which states:

The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.

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Case law applying this statute, and the treatises discussing this subject, make it clear that any mark is an acceptable form of signature[4] and that the key element of a "signature" for New York law is not the appearance or form of the writing or characters written or affixed, but rather the signer’s intent to sign.[5]

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A case on point with the situation we have here is Koo v. Robert Koo Wine & Liquor, Inc.[6] It involved the execution of a deed and the statute Real Property Law §243. There, one brother signed the name of another brother on a deed; a litigation followed where the objectant to the deed alleged that the signing of the absent brother’s name was a forgery, particularly in the absence of written authorization to sign as agent. However, the Court held that since the brother had the authorization and consent of his brother, the signing of the absent brother’s name was not a forgery, was the signature of said absent brother, and constituted a valid signature for purposes of making a binding, lawful deed.

The background, policy, and legal analysis regarding "signatures" are extensively discussed in Corpus Juris Secundum. It emphasizes that the writing of one’s name by one’s self is not necessary for a valid signature and that any character, symbol or figure may be adopted as one’s signature. Of particular significance herein is Volume 80, Signatures, Section 6, addressing signatures "by the hand of another":

Generally, a signature may be made by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence.... A signature so made becomes the signature of the person for whom it is made, and has the same validity as though written by him.... Where a signature is made in this manner the person writing the name is regarded as a mere instrumentality, by which the person whose signature is written exercises his own discretion and acts for himself, and not through an agent. So a mark made for a person [by another person] at his direction may be regarded as his signature.

The writing of a name or the making of a mark by one other than the person whose signature the name or mark purports to be may constitute a sufficient signature of such person, where he touches the pen or pencil used in the process while the purported signature is being made, but the touching of the pen or pencil is not essential to the validity of the signature.

The policy that a "signature" includes any mark or symbol is also evident in the statutes governing execution of negotiable instruments and Wills. Uniform Commercial Code §3-410(2) parallels this policy, as does New York Estates, Powers and Trusts Law §3-2.1, which extensively regulates the question of signature and applies to other areas of law, which provides for guidance of testator’s hand: Valid signature may be by personally subscribing his name, or having a third person subscribe it for him at his request, or by having a third person guide his hand on writing. A Testator’s signature is sufficient and complies with law if, being physically unable to sign his name, he calls upon another to assist him even to the extent of holding and guiding his hand so long as it is his wish that his signature be thus made and he acquiesces in or adopts it.

All of the foregoing are in keeping with the policy that a ‘signature’ includes any mark, symbol, or the assisted writing, made by the signer, or with his authorization, or at his direction or request, or with his consent.

This is contrary to the legal elements of forgery, which in New York is governed by statute: Penal Law Article 170. All the forgery statutes state that a requisite element is the "intent to defraud, deceive, or injure" (emphasis added). No such intent or conduct is evident in the situation which is the subject of this article.

Further supporting this point of view is the Notary Public Advisory Board, New York State Department of State, Division of Licensing Services, which, when consulted for its opinion on such a situation, also opined that, under the circumstances involved, the notarization of signer’s signature was proper. It was signer’s intent to sign and the marking of a mark that constituted the signature, and the notarization was proper and valid.

As a final point, it is significant to note that under such circumstances, the legal presumption is that the signature was valid and the burden is on any objectant to prove that execution was not valid.

Conclusion

Based upon all of the foregoing, it follows that the deed at issue in our example was duly signed by the grantor in that mark or signature was affixed to the deed by the grantor or by such act that constituted the act of the grantor as a matter of law. Specifically, the grantor’s affixing an ink mark which, with the aid or assistance of another’s hand, wrote out grantor’s name, while grantor held or touched the pen or writing instrument and the person’s hand steadied, guided, or assisted him, at grantor’s request and/or with his consent, constituted the signature of grantor and was lawful, valid and binding. The signature and execution of the deed were valid, lawful, and binding, and conveyed the real property pursuant to said deed. Furthermore, the act does not constitute forgery – nor any other wrongdoing- particularly in the absence of a showing of fraudulent deceptive intent. Any objectant to the deed would bear the heavy burden of proving that the signature was not valid, and in light of the opinion of the eyewitnesses, all present at the time of execution, as to the validity of the execution, such objectant would certainly fail to convince a trier of fact by the preponderance of the evidence; instead, the presumption of due execution would prevail. Similarly, the notarization of the signature would also be proper, lawful, and valid.

Endnotes

1. Friedman, Contracts and Conveyances of Real Property, 4^th Edition (1984 as amended); 26 Corpus Juris Secundum § Deeds § 4 (a).

2. New York Real Property Law § 243; See also Powell, The Law of Real Property,§ § 889-890.

3. The meaning of the word "Construction" here is how words are to be "construed" or interpreted. This Volume of the statutes contains meanings, interpretations, applications, and constructions of the statutory language.

4. In re Mark’s Will, 21 A.D.2d 205, 250 N.Y.S. 2d 177 (1964).

5. People v. Mercado, 123 Misc. 2d 775, 474 N.Y.S. 2d 950 (1984); People v. Lo Pinto, 27 A.D.2d 63, 275. N.Y.S.2d (1966).

6. 170 A.D.2d 360, 566 N.Y.S.2d 63(1991) (signatory to writing transferring real property can, with requisite intent, adopt any mark or sign as his own signature, without resort to or need for written agency agreement). See Annotations to McKinney’s Consolidated Laws of New York Annotated (1989 as amended).