Will Accepted for Probate but Not Signed

Presented by Kay Creasman, VP & Counsel

Email from an agent:

Good afternoon, I wanted to run this will by you. It has been probated and of record, but the signature page (page 8 of the attached) wasn’t signed. However, page 9, the self-proving affidavit was signed, notarized, and witnessed. Is this acceptable?

Reply:

Wills are a constant source of problems for title insurance purposes.

Reviewing the search, we found the will with the page for signatures of the testator and witnesses unsigned, but the following page with complete self-proving provisions fully signed by the testator and witnesses. The Clerk accepted the document for probate. The issue is how we handle this for title insurance purposes. For that, we first need to read the will and look at the list of heirs. How is the testator devising his real estate? In this case, the will devised the real estate to his four adult children, who were the only people in the list of heirs. Even though the will gives the Executor powers under §64.1-57 (now §64.2-105), we required the four children to sign as well as the Executor due to the lack of the signature page being signed by the testator and witnesses.

Not much imagination is needed to see a different set of circumstances. If the will designated only one of the children to inherit the real estate, we still would need all four children to sign as well as the Executor. Circumstances could exist where a court order would be needed to validate the will. It’s possible the witnesses would be called to verify their signatures and to discuss their memory of the signing, although in this case the will was executed more than ten years ago. For some years, it was common practice with wills to have the testator and all witnesses initial each page, but that doesn’t seem to be the case these days. It’s all too easy to imagine a whole new will attached to a signed, self-proving affidavit which normally fits on a single page.