What Should a Will Signed by Amanuensis Look Like?
Last week I wrote about amanuensis, the practice of a testator directing a third party to sign a will on his or her behalf, and when it can be used. A second practical consideration is whether the amanuensis should sign his or her own name or that of the testator. Courts have allowed both, so long as the amanuensis signed at the direction and in the presence of the testator.
In both Clark, In the Goods of (1839), 2 Curt 329 and Re Deeley & Green,  1 DLR 603 the amanuenses signed their own names rather than the testators’. In both these cases, the amanuenses noted they were signing at the testator’s direction. In Clark the amanuensis wrote:
“Signed on behalf of the testator, in his presence, and by his direction by me,
“Vicar of Warfield, Berks.”
In Deeley & Green the attestation clause included:
“By authority of the above named and the designed Robert Brown, who declares that he cannot write, never having been taught, I, Charles Smith Campbell, writer, Glasgow, notary public, subscribe these presents for him, he having authorised me for that purpose.”
An amanuensis may also write the testator’s name. In Jenkins v Gaisford (1863) 3 Sw & T 93, the testator had difficulty writing his name for some time before his death. He had a stamp made of his usual signature, which his amanuensis used to sign his will. Because the amanuensis was directed by the testator to use the stamp in his presence, the signature was valid and the will was upheld. Likewise, in Bailey, In the Goods of (1838) 1 Curt 914, the amanuensis wrote the testator’s name in his presence and at his direction. The amanuensis wrote an affidavit describing the circumstances and the will was upheld.
A will not signed by the testator him or herself may be vulnerable to challenge. It would be prudent to take extra care with meeting notes and a detailed affidavit of execution. It is important to remember that the other formal requirements of the will must be present for the will signed by amanuensis to be valid. One such requirement is that there must be two witnesses to the testator’s signature. An amanuensis does count as a witness to the will; the amanuensis signs his or her own name or the testator’s (see: Smith v Harris (1845) 1 Rob 262).
Thank you for reading.