I was reading a blog and a question was posed: is a Will valid if it was executed by a blind person? While that struck me as a silly question at first, upon reflection I realized it wasn’t a silly question after all, and it is one that many individuals might ask. The short answer is, of course it is valid. There are several reasons why a person could not properly execute a Will or Trust; nevertheless, whether or not a testator (the individual who has made the will) is blind or deaf are not included within the reasons that would invalidate a Will or Trust.
As you know, in my previous blog, I noted that a Will is essentially a letter to the judge that provides several things in Michigan, including: the appointment of guardian for minor children, the naming of a funeral representative, and the disposition of one’s assets. In order to have a valid will in Michigan, there are two basic requirements: 1) a person must be at least 18 years of age; and 2) they must have sufficient mental capacity.
In order to have mental capacity, a person must have: the ability to understand he/she is providing for the disposition of his or her property after death, the ability to know the nature and extent of his or her property, the understanding of the natural objects of his or her bounty (living relatives and descendants), and the ability to understand in a reasonable manner the implications and effects of signing the Will.
Assuming a person is 18 and has sufficient mental capacity, a Will (in Michigan) is valid if it is in writing, signed by the testator or in the testator’s name by some individual in the testator’s conscious presence and in the testator’s direction, and signed by at least two witnesses.
A couple interesting things to note here are that a witness to a Will in Michigan doesn’t necessarily have to witness the actual signing. If the testator acknowledges that it is his/her signature, a witness can be a witness on the Will. Also, a testator doesn’t actually need to sign the Will him/herself, it can be signed under his/her presence and direction. This exception can directly relate to the question of whether or not a blind individual can properly execute a Will. In the state of Michigan, a Will is still valid if it is signed by another individual in the presence and under the direction of the testator. If you have a blind client who is unable to sign there name on the document, the document can be signed for them as long as they are present, aware, and giving direction.
In addition to the above, a Will is valid as a holographic Will whether or not witnessed if the material portions of the Will and the signature are in the testator’s personal handwriting.
Finally, even if a writing does not comply with these rules, it is still valid if it can be established “by clear and convincing evidence” that the testator/descendant intended the document or writing to constitute a Will.
Now, about Trusts: can a blind person also properly execute a Trust? What many people do not appreciate is that a Trust is substantially different than a Will. In Michigan, a Trust can be valid even if it is oral. The standard, however, is “clear and convincing evidence.” The absolute worse way to establish a Trust is to do so orally, as it will be subject so much interpretation and disagreement that in practice it may have little meaning.
Formally, Michigan provides statutory methods for creating a Trust, these include: a transfer of property from one person to another person during the transferor’s lifetime for the benefit of someone other than the recipient, declaration by the owner of the property that he/she is holding this property as a trustee, exercise of discretion over a certain property, a promise by one person to another whose rights under the promise are to be held in trust for a third person. Of all the requirements stated above, there is nothing requiring a Trust to be in writing, notarized, or witnessed. However, in order for a Trust to be created, all of the following must apply: the maker has capacity, the maker has the intention to create a Trust, the Trust has a definite beneficiary, the trustee has actual duties to perform, and the sole trustee and sole beneficiary are not the same person.
As long as the Trust has the above requirements and the maker has the above requirements, vision is not required.
The basic issue in determining whether a Will or a Trust is properly executed is whether there can be clear and convincing evidence establishing a creation. Beyond that, the only requirements are that the person must have had the appropriate mental capacity and be at least 18 years of age. For a Will, there must be a writing, but not for a Trust.
When there are special issues, whereas a person is blind, it would be smart for an estate planning attorney to have the Will or Trust read to the client, and, in my view, have the execution videotaped. If it is a lengthy document, as some Trusts can be, I would recommend having the Trust translated to braille and the key portions of the Trust concerning distribution and the naming of fiduciaries read to the testator. If the document is translated into braille, this not only allows the testator to review the document with ease, but allows them to ret
ain a readable copy for reference.
These are good ways to establish clear and convincing evidence that the person who is executing either a Trust or Will has sufficient mental capacity and understands the implications of creating these documents, with or without being able to physically see the documents themselves. As noted above, taping the execution of these documents would create clear, visual evidence that the testator understands the property they possess, understands what these documents are set forth to accomplish, who their relatives are, and would provide evidence that the testator personally authorized the execution of these documents. All of these things can be accomplished even if the testator lacks the ability to see.
Nevertheless, in the case of trusts, it is best to create writings. Oral trusts, though valid, are often openly interpreted and subject to much disagreement amongst family members, especially when these trusts contain provisions that create an unequal distribution of assets. As noted before, reading the documents to the testator or having them translated into braille are the most secure option.
So, the question is, can a blind person properly execute a Will or Trust? The answer is simple: absolutely.