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Monday, March 29, 2010

Can a blind person sign a Will?


A Will has to be a written document, and a legally blind person would likely have difficulty reading it. This gives rise to the question of whether a blind person could legally make a Will. The answer is a resounding yes!

For the sake of restricting this discussion to the topic of making a Will despite blindness, I'm going to assume that we are talking about a person who is of legal age to make a Will and who has the required mental capacity to make a Will.

The key to making a Will for a blind person legal lies in the Affidavit of Witness to Will which is attached to the Will. Every Will needs one of these Affidavits, even when there are no unusual circumstances to consider. The Affidavit contains the evidence that all the formalities of witnessing and signing a Will were properly followed, and is sworn by one of the two witnesses who saw the Will being signed.

When there is an unusual situation, such as the Will being signed by someone who is blind and cannot read the document he or she is signing, the Affidavit will describe the unusual circumstances, and will also describe what was done to address those circumstances. In the case of a blind person, the Affidavit would have to say that the Will was read in full to the blind person, and that it was explained to him or her. It would also have to say that the blind person appeared to fully understand the Will.

This really isn't very different from the Affidavit that would form part of the Will of a sighted person, except that the Will has to be read to the blind person. Every Will, whether the testator is sighted or blind, has to be fully understood by the person who is signing it.

Obviously a blind person will want to work with a lawyer he or she trusts. A lawyer who is well-experienced in Wills and Estates law will ensure that the Will is properly drawn up, and that the Affidavit of Witness to Will is properly in place to support the Will.

6 comments:

  1. We should change laws so legally blind people have better protection than "find a person you trust" because when it comes to wills/trusts money can be an overwhelming factor to change human behavior. I think the law needs to go a step further and in cases of legally blind people, they have a video tape of the reading of the will before a signature is made. My friend just passed away and the man she "trusted" didn't do her wishes and had a "revised" will drawn up when she was 95/legally blind and took advantage of the situation.

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  2. Thanks for posting these comments. I like the idea of videotaping the reading of a Will and the subsequent signing of it. Unfortunately, it isn't just blind people who are vulnerable. Older people who are losing mental capacity are also very much at risk. I wish there was something better than "someone you trust" because a heck of a lot of financial abuse is done by someone the person trusted.

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  3. I am currently helping a totally blind person make his will with a lawyer in British Columbia. This is the first time we have worked with this lawyer. I am not an executor or beneficiary in his will. However the reading and signing is coming and the lawyer refuses to allow me to be present during that time. I feel that someone should be present as an observer to ensure the will has been read to him and that the will that was read to him was observed to be the actual document that the blind person signed. I take my responsibility of helping this blind person very seriously, but have had to success at convincing the lawyer that I be present even if the blind person tells the lawyer he would like me present.

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    Replies
    1. You're right that someone has to make sure that the will has been read to him and that he knows what he's signing. That's the lawyer's job. In fact, the lawyer will sign and swear an affidavit that these formalities were followed. Believe me, the lawyer is not going to risk losing his license to practice by putting something other than the actual will in front of your friend for signing.

      Lawyers are highly trained in dealing with wills in unusual situations. One of the basic rules of dealing with any unusual circumstances is that the lawyer must have only the testator in the room so that he knows that the testator is free to speak without any restraint or fear. This is not about you or your role or anything; it is simply that the lawyer wants to ensure that all of the right steps are followed to ensure that the will is going to be valid.

      Lynne

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  4. Doesn't the lawyer drawing up the will need to ask the tests for if he can see, if he can write etc. before drawing up a will?

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    Replies
    1. I've never had to ask for any tests, for the simple reason that blind people I've dealt with have simply said, "I'm legally blind, can we work around that?" In each case, I knew before I started drafting.

      I suppose it could happen that the lawyer didn't know the client was legally blind. Full blindness would be relatively easy to spot, since the lawyer would be spending at least an hour chatting with the client first. In that case, I don't see the need for tests.
      Legal blindness does not necessarily mean complete blindness though, so I can imagine that would be harder to identify.

      If I were in that situation, I would attempt to verify the client's abilities because I would want to be absolutely sure that I addressed the signing of the will properly. That might involve asking for tests, but to be honest, if a client tells me he can't see well enough to read a page in a will, I have no reason to doubt him. All it means is that instead of giving him the document to read, I would read it to him. I don't need tests to persuade me to do that.

      Are you thinking of a specific case or situation that I have not addressed?

      Lynne

      Lynne

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