2022-12-04

Assisted Signatures: How to Execute a Document When the Client Needs Help Holding the Pen

Assume that we have a Client who is mentally sound but physically feeble and the following happens: The Client’s hand is guided as he places his name on the document and the person who guides his hand writes out the Client’s name in a manner that bears no resemblance to his 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 his intention to sign. Is the signature valid?

What constitutes a “signature”?

The statutory definition of “signature” is found in New York General Construction[1] 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.

Case law applying this statute make it clear that any mark is an acceptable form of signature[2] 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.[3]

Similarly, the legal treatises discussing the subject echo this viewpoint. For example, the discussion in Corpus Juris Secundum 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 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.

Applies to all kinds of documents

This analysis holds true for deeds, Wills, and other documents as well. For example, in Koo v. Robert Koo Wine & Liquor, Inc.[4], one brother signed the name of another brother on a deed; a lawsuit 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 policy that a “signature” includes any mark or symbol is also evident in the statutes governing execution of negotiable instruments, too. Uniform Commercial Code §3-410(2).

New York Estates, Powers and Trusts Law §3-2.1 discusses signatures and provides for guidance of a 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.

Note that, contrary to common belief, the mere act of writing someone else’s name to a document is not forgery. All the forgery statutes state that a requisite element is the “intent to defraud, deceive, or injure” (emphasis added).[5] The tricky part, of course, is making sure you have enough evidence that the execution of the document was definitely the signer’s intent.

Conclusion

The document in our example was duly signed by the Client in that a mark or signature was affixed to the document in such a manner that it constituted the act of the Client. Specifically, the Client’s affixing an ink mark which, with the aid or assistance of another’s hand, wrote out the Client’s name, while he held or touched the pen or writing instrument and the other person’s hand steadied, guided, or assisted the Client, at the Client’s request and/or with his consent, constituted the signature of the Client and was lawful, valid and binding. Furthermore, the act does not constitute forgery — nor any other wrongdoing — particularly in the absence of a showing of fraudulent or deceptive intent.

Disclaimer: This article is based on NY law. It is for general information and is not legal advice nor the formation of an attorney-client relationship. Every situation is unique and you should not infer from the situations discussed, but must instead consult an attorney to discuss your particular situation.

Endnotes

1. The meaning of the word “Construction” here is how words are to be “construed” or interpreted as they relate to statutes.

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

3. See, e.g., 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).

4. 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).

5. New York Penal Law Article 170.

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