Estate Planning: The Importance of a Proper Signature

By Dennis McAndrews, Esq. and Caitlin McAndrews, Esq.

 

When estate planning documents such as wills and powers of attorney are finalized, the last step is properly affixing signatures to the documents. Two recent cases decided by the Pennsylvania Supreme Court and Pennsylvania Superior Court reflect the importance of correctly finalizing this process in accordance with applicable law.

 

The Pennsylvania Supreme Court addressed such an issue in an intra-family dispute in the case of In Re Koepfinger in August, 2023. The Supreme Court held that a trust created by a child purporting to act under the authority of a Power of Attorney from her father was void from the start (“void ab initio”) because the power of attorney had not been properly executed before the trust was created pursuant to that power. While changes in the last decade to Pennsylvania’s Power of Attorney statute now require POA documents must be executed before witnesses and a notary, the Power of Attorney in this case was not properly witnessed and notarized, thus causing the trust created under that void power to also be completely ineffective and void as a matter of law.  This decision thus changed the distribution of assets envisioned by the void trust in a manner contrary to the intent of the holder of the power of attorney who created the trust.

 

The Pennsylvania Superior Court also recently decided a signature issue in September 2023 in the case of In Re Estate of Kittler.  This case involved the now-common practice in business transactions of using an “electronic signature”; notably, Pennsylvania law expressly permits electronic signings in business transactions pursuant to the Pennsylvania Electronic Transactions Act and through some rules of court, but has no comparative authorization for wills.  While the decision of the Superior Court gave no suggestion that there was any real question that the testator intended his electronic signature to be the equivalent of a “wet“ signature (a signature with a pen), the Superior Court nonetheless held that Pennsylvania law requires a “wet” signature, and that an electronic signature does not satisfy the requirements of Pennsylvania law, thus rendering the will void and unenforceable.

 

These cases yet again reflect the importance of utilizing competent legal counsel in creating your estate plan, and serve as a caution to anyone attempting to use internet resources to undertake this critical process. We welcome the opportunity to work with you and your family to develop—and execute—a proper estate plan to meet your complete needs. Click here to Contact Us Today!