§ 2502. Form and execution of a will
Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 20 Pa.C.S.A. Decedents, Estates and Fiduciaries
20 Pa.C.S.A. § 2502
§ 2502. Form and execution of a will
Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions:
(2) Signature by mark.--If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed before or after he makes his mark shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.
(3) Signature by another.--If the testator is unable to sign his name or to make his mark for any reason, a will to which his name is subscribed in his presence and by his express direction shall be as valid as though he had signed his name thereto: Provided, That he declares the instrument to be his will in the presence of two witnesses who sign their names to it in his presence.
1972, June 30, P.L. 508, No. 164, § 2, eff. July 1, 1972. Amended 1974, Dec. 10, P.L. 867, No. 293, § 6, imd. effective; 1994, Dec. 1, P.L. 655, No. 102, § 1, effective in 60 days.
JT. ST. GOVT. COMM. COMMENT--1947
Paragraph (1): This is similar to the proviso in section 2 of the 1917 act [Wills Act of 1917, June 7, 1917, P.L. 403, No. 190]. Between the Act of 1833, P.L. 249 [repealed], which first required that wills be signed ‘'at the end thereof” and the effective date of the Wills Act of 1917, any writing of a testamentary nature following the signature invalidated the whole will: Wineland's Ap., 118 Pa. 37. This proved to be too harsh and hence the proviso in section 2 of the 1917 act which is hereby preserved. What is considered to precede or follow a signature will of necessity be a matter for judicial determination in each case, but the numerous decisions and articles on the subject will be helpful: See Covington Est., 348 Pa. 1, 92 Pa.L.Rev., 217; Coyne Will, 349 Pa. 331, 93 Pa.L.Rev., 110.
Paragraph (2): This is taken in part from section 3 of the Wills Act of 1917. The requirement that two witnesses sign the will in the presence of the testator is new. It is believed that no mark should be recognized unless there are subscribing witnesses.
This clause is intended to eliminate arbitrary requirements without removing any of the essential safeguards. The testator's name may be subscribed “before or after he makes his mark” but it must still be subscribed in his presence. If it is subscribed out of his presence, the execution will be faulty: cf. Orlady's Est., 336 Pa. 369. The mark must be made in the presence of the witnesses. A later acknowledgment to one or to both of them will not suffice.
Paragraph (3): This also is taken in part from section 3 of the Wills Act of 1917. Reasons for the precautions are slightly greater in this case than where execution is by mark. The requirements in addition to those where execution is by mark are: (1) Testator's name must be subscribed at his “express direction”, and (2) Testator must declare the instrument to be his will in the presence of the witnesses. As a practical matter this clause seldom will be employed. Whether testator is able to sign his name or make his mark will depend largely upon his own decision. See Rosato's Est., 322 Pa. 229, where the court at page 231 said: “As we view the act, the sufficiency of the reason for not signing his name is for the testator's determination; ‘any’ reason which moves him not to sign is sufficient provided there is compliance with the other requisites of the act.”
No special provision was made for the extremity of the decedent's last illness as is contained in sections 2 and 3 of the 1917 act. If a testator is so ill that he can neither make his mark nor direct another to sign for him, he cannot be supposed to have testamentary capacity.
JT. ST. GOVT. COMM. COMMENT--1994
The requirement that, regarding wills signed by mark, the testator's name be subscribed in his presence has been eliminated. It has been a trap, since often the testator's name is typed on the will when it is drafted. The presence of two subscribing witnesses is thought to be sufficient protection against fraud.
The Uniform Probate Code, section 2-502, recognizes that the testator's mark is really his signature and does not require the testator's name to be subscribed in his presence.
HISTORICAL AND STATUTORY NOTES
Act 1974-293 legislation
The 1974 amendment deleted the opening exception clause which read, “except nuncupative wills but including wills of mariners and persons in the Armed Forces of the United States.”
Act 1994-102 legislation
The 1994 amendment in subd. (2) following “subscribed” deleted “in his presence”.
Section 10(2) of 1994, Dec. 1, P.L. 655, No. 102, provides:
“The amendment of 20 Pa.C.S. § 2502(2) shall apply to wills executed on or after the effective date of this act.”
1917, June 7, P.L. 403, §§ 2 and 3 (20 P.S. §§ 191 and 192).
1947, April 24, P.L. 89 § 2 (20 P.S. § 180.2).
20 Pa.C.S.A. § 2502, PA ST 20 Pa.C.S.A. § 2502
Current through 2018 Regular Session Act 164 (End)
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