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Please clarify this North Dakota statute.
Anonymous6 views3 answers
North Dakota Century Code 30.1-08-02 (in section 1b) talks about the requirement that a will be "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction." I assume that means, for example if the will is for John Smith, that if someone else signs, they have to sign "John Smith" instead of with their own name? And what if they have power of attorney? If they have POA and sign their own name and not John Smith's name, would that be considered "signing in the testator's name"?
This is not really a criminal defense question. It's better placed in the "wills" practice area. The testator, the person making the will, is generally required to sign the will in the presence of witnesses for it to be valid. There are, however, times when a person cannot sign the will, usually because they are physically unable to do so (for example, a quadriplegic). That person can still make a will by directing someone else to sign the document on the testator's behalf, so long as the signature is made with the testator knowing what is going on and the testator directs the other person to sign. A power of attorney is a different animal all together. You should talk with an experienced estate planning lawyer if you have questions about the differences and limitations of power. Good luck.
This is not a POA issue because actually an agent under a POA generally can't make a will for someone. This is the requirement that the will be signed by the testator or by mark or at their direction.
I have not done any research to see if the Courts have ruled on this language, but I do not think the statute has to be read as you think. The signature has to be in the testator's name, meaning signed on behalf of the testator, the intent being to establish that the terms of the will are the testator's wishes, not necessarily the testator's name. In this situation I would make sure the circumstances are clear and explained. I suggest you have an attorney review the totality of the circumstances.
