The dictionary definition of “signature” is “a person’s name written in a distinctive way as a form of identification in authorizing a check or document or concluding a letter.” There are no grades for penmanship when signing legal documents. Your signature is your mark, which is exactly how Georgia law defines it: “Signature” or “subscription” includes the mark of an illiterate or infirm person. O.C.G.A. § 1-3-3(19) (formerly Ga. Code Ann. § 102-103).
Wills
In Georgia, a Will must be in writing, must be signed by the testator or by some other individual in the testator’s presence and at the testator’s express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will. A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness’s presence and at that witness’s direction. A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will. See O.C.G.A. § 53-4-20. Wills may be self proved using the affidavit provided in O.C.G.A. § 53-4-24(b). That self-proving affidavit recites the required elements for valid execution, having the testator and each witness swear under oath as follows:
Before me, the undersigned authority, on this day personally appeared _______ , _______, and _______, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, _______ , testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator’s last will and testament or a codicil to the testator’s last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator’s request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age.
HB 940, introduced during the 2022 legislative session, would authorize execution of electronic will in Georgia. An ABA web page summarizes legislation in the various states that authorize electronic wills and the Uniform Law Commission tracks legislation regarding the Uniform Electronic Wills Act.
Trusts
“Except as provided in subsection (d) of this Code section, an express trust shall be created or declared in writing and signed by the settlor or an agent for the settlor acting under a power of attorney containing express authorization.” O.C.G.A. 53-12-20. The exception in subsection (d) relates to Qualified Income Trusts, which authorizes agents to execute a QIT even if the power of attorney was silent regarding trust powers.
Deeds
O.C.G.A. 44-5-30 provides that a deed to lands shall be an original document, in writing, signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. It shall be delivered to the purchaser or his or her representative and be made on a good or valuable consideration. The consideration of a deed may always be inquired into when the principles of justice require it. There is an exception for deeds filed electronically pursuant to Sections 44-2-35 to 44-2-39.2, and O.C.G.A. 10-12-1 etc.
Except for deeds filed electronically (modified in Ga. L. 2022, p. 280, § 1/HB 974, effective 7/1/2023), deeds may not be recorded unless it is an original instrument and shall be attested or acknowledged as provided by law. See Code Section 44-2-14. Deeds must also be attested as provided in Section 44-2-15, which states:
Any of the instruments enumerated in Code Section 44-2-14 may be attested by a judge of a court of record, including a judge of a municipal court, or by a magistrate, a notary public, or a clerk or deputy clerk of a superior court or of a city court created by special Act of the General Assembly. With the exception of notaries public and judges of courts of record, such officers may attest such instruments only in the county in which they respectively hold their offices.
As a general matter, Georgia law authorizes eletronic filing of deeds, but the deed is executed manually. Deeds and related documents are filed using a portal maintained by the Superior Court Clerks’ Cooperative Authority.
Powers of Attorney
O.C.G.A. § 10-6B-5 states:
(a) A power of attorney shall be:
(1) Signed by the principal or by another individual in such principal’s presence at the principal’s express direction;
(2) Attested in the presence of the principal by a competent witness who is not also named as an agent in the power of attorney being attested; and
(3) Attested as set forth in Code Section 44-2-15, in the presence of the principal, by an individual who is not a witness for purposes of paragraph (2) of this subsection and who is not also named as an agent in the power of attorney being attested.
(b) The individuals provided for in paragraphs (2) and (3) of subsection (a) of this Code section shall not be required to attest to the signature of any person other than the principal or the individual signing at the principal’s express direction.
Section 10-6B-19(a) states “the term “attested power of attorney” means a power of attorney that was purportedly attested as set forth in Code Section 44-2-15.”
O.C.G.A. § 10-6B-40(a)(1) states specific ahority is required for an agent to do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(A) Create, fund, amend, revoke, or terminate an inter vivos trust, other than a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) as provided under subsection (d) of Code Section 53-12-20;
(B) Make a gift;
(C) Create or change rights of survivorship;
(D) Create or change a beneficiary designation;
(E) Authorize another person to exercise authority granted under the power of attorney;
(F) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(G) Exercise fiduciary powers, other than those associated with an ownership interest as provided under paragraph (14) of Code Section 10-6B-48, that the principal has authority to delegate;
(H) Exercise authority over the content of electronic communications, as such term is defined in Code Section 53-13-2, sent or received by the principal; or
(I) Renounce an interest in property, including a power of appointment.
The specific authority required for the above powers is usually evidence by having the principal initial the powers granted, but there is nothing in the code section stating that each power must be individually initialed. Of note subsection (c) provides “if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Code Sections 10-6B-43 through 10-6B-55.” Those sections concern general power to act for the principal, while the powers requiring express authorization could alter the principal’s estate plan.
Health Care Advance Directives
O.C.G.A. § 31-32-5 provides that health care advance directives (a/k/a Advance Directives for Health Care) must be in writing, signed by the declarant or some other person in the declarant’s presence and at the declarant’s express direction. They must be attested and subscribed in the presence of the declarant by two witnesses who are of sound mind and at least 18 years of age, but such witnesses do not have to be together or present when the declarant signs the advance directive for health care. Neither witness can be a person who:
(A) Was selected to serve as the declarant’s health care agent;
(B) Will knowingly inherit anything from the declarant or otherwise knowingly gain a financial benefit from the declarant’s death; or
(C) Is directly involved in the declarant’s health care.
Not more than one of the witnesses may be an employee, agent, or medical staff member of the health care facility in which the declarant is receiving health care.
In 2022, Georgia passed HB 752, the Psychiatric Advance Directive Act. O.C.G.A. § 37-11-9 provides that a psychiatric advance directive shall be effective only if it is signed by the declarant and witnessed by two competent adults, but such witnesses shall not be required to be together or present when such declarant signs the directive. The witnesses shall attest that the declarant is known to them, appears to be of sound mind, is not under duress, fraud, or undue influence, and signed his or her directive in the witness’s presence or acknowledges signing his or her directive. For purposes of this subsection, the term “of sound mind” means having a decided and rational desire to create a psychiatric advance directive. Providers, employees of the Department of Behavioral Health and the mental health agent may not serve as witness.
Contracts
Some, not all, contracts must be signed. O.C.G.A. § 13-5-30 states:
(a) To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him or her:
(1) A promise by a conservator, guardian, personal representative, or trustee to answer damages out of his or her own estate;
(2) A promise to answer for the debt, default, or miscarriage of another;
(3) Any agreement made upon consideration of marriage;
(4) Any contract for sale of lands, or any interest in, or concerning lands;
(5) Any agreement that is not to be performed within one year from the making thereof;
(6) Any promise to revive a debt barred by a statute of limitation; and
(7) Any commitment to lend money.
(b) Any agreement to modify, alter, cancel, repeal, revoke, release, or rescind a promise, agreement, contract, or commitment provided for in subsection (a) of this Code section must be in writing and signed by all parties to such agreement; provided, however, that if the party against whom enforcement of such agreement under this subsection is sought admits in a pleading, in testimony, or otherwise in court that the agreement was made, then such agreement is enforceable if valid in all other respects.
O.C.G.A. § 13-5-31 identifies contracts which need not be in writing:
(1) When the contract has been fully executed;
(2) Where there has been performance on one side, accepted by the other in accordance with the contract;
(3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.
See also O.C.G.A. § 11-2-201(1) requiring that contracts governed by UCC Article 2 be in writing if the sale price of goods is $500 or more. The writing must be “sufficient” but it is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. See exceptions in O.C.G.A. § 11-2-201(3); and see § 11-204 (regarding contract formation).
Cases
In Crutchfield v. McCallie, 188 Ga. 833 (1939), McCallie filed a caveat to Crutchfield’s petition to probate the Will of Mary Crutchfield. Among the allegations, McCallie alleged Mary Crutchfield did not sign the Will. The Court held there was “no merit in the contention that the evidence demanded a verdict that the will was not properly executed, in that it was not “signed by the party making the same or by some other person in his presence and by his express direction,” as provided by the Code, § 113-301. There was evidence that the attorney who prepared the will enabled the testatrix, who because of her physical condition could not write, to make her mark by placing her hand upon the pen as the mark was made. This was sufficient to authorize the jury to find that the testatrix signed the will. Code, § 102-103.”
In Mitchell v. Mitchell, 245 Ga. 291 (1980), the single question presented was whether or not the will was validly executed. The facts in the record below were: “[t]he probate court found the following as facts: The testator, Charlie Monroe Mitchell, made his mark unassisted. The words “his mark” above the “X” and the signature “Charlie Monroe Mitchell” below the “X” were made by the witness Walter Bolling, Jr., while the testator had his hand placed on the top of the pen. The testator had a limited education, was reluctant to do much signing, and signed on some occasions using an “X” whereas on other occasions he would sign “C. R. Mitchell.” His use of the initial “R” instead of the correct initial “M” is left unexplained in the record.” Although there was a potential issue of fact since the mark for testator’s middle name was “R” while his initial was “M”, no objection preserved that issue on appeal. The decision below was affirmed.
Digital Signatures
O.C.G.A. § 10-12-7 provides that a record or signature shall not be denied legal effect or enforceability solely because it is in electronic form.
15 U.S. Code § 7001 provides: Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce—
(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
The E-Sign Act is optional for consumers. They retain the right to use ‘paper & ink’ documents at their discretion. Further, Section 7003 specifically exempts wills, codicils, or testamentary trusts. See The Wills, Codicils, and Testamentary Trusts Exception to the Electronic Signatures in Global and National Commerce Act, 67 FR 63379. And See Uniform Electronic Transactions Act.
In Sea-Land Service, Inc. v. Lozen Internationsl, LLC, 285 F. 3d 808 (9th Cir. 2002), an email with an electronic “signature” attesting that the message was authored by the party’s agent and within his scope of authority was held to be an opposing party admission, not subject to the hearsay rule.
