Can a Disabled Sign a Last Will and Testament?

Having a disabled sign a last will and testament is a tricky area of the law. The Court determines whether a person’s signature on the last will and testament is valid. If a person signs a Last Will and Testament and there are two witness signatures, is that enough? There are various ways to attack the validity of a last will and testament. But, the two most common areas are if the person was “not competent” or subject to undue influence. But, what if the person who signs the last will and testament is disabled? Can this be a valid signature?

Proving Disability

The issue of whether a disabled person’s signature is valid certainly focuses on the person’s ability to make reasonable decisions. More specifically, you are looking to prove that the person did not understand the property that he owned and how he intends to dispose of it. The issue of incompetency surely can be proven through expert opinion by a physician reviewing medical records and eye witness testimony. However, some of the most potent evidence can be eye witness testimony of the person’s behavior around the time the document was signed.

What if the Circuit Court Deemed a Person Disabled in a Guardianship Case?

For a person who is already deemed disabled, one of the issues is who deemed them disabled. Let’s assume that the person was deemed disabled by the Circuit Court in a guardianship proceeding. Assuming this for guardianship of the property where the standard is that the person needs the appointment of a guardian because of a disability that impairs their ability to effectively manage their assets. The standard for the appointment of a guardian is different from that of incompetency. In fact, there is a Maryland statute that expressly states this. However, the lines will be blurry between a disability determination for guardianship purposes and incompetency (especially if the disability is dementia centered).

An interesting issue is that in order for the Circuit Court to determine disability in a guardianship case, two certificates need to be submitted. The newer certificates have a section where the physician states whether the disabled understands legal documents and/or can sign them. This answer can certainly be used as evidence that the disabled’s signature is invalid.

But what happens if the disabled person signed before the guardianship certificates were made? Then this issue becomes more nuanced and complicated.

Bottom line – Can a disabled validly sign a last will and testament? Maybe. But, there are lots of complications and lots of risk of having deemed “disabled” sign a last will and testament.