Can a Will Written in a Text Be Legal – It May Happen !

Can a Will Written in a Text Be Legal – It May Happen!

Author:  William W. Erhart, Esq.

Our neighbors across the pond may soon be able to create a will by voicemail, video or text under what has been called a “radical overhaul” of the inheritance laws proposed by the British government. Touted as keeping up with the digital age, the idea raises some legitimate concerns.

In the United Kingdom and the United States, under current law, a will must be in writing and signed by the will-maker and witnessed – in person – by two people, who all sign a paper document.

The UK proposal would allow the courts to decide ‘on the balance of probabilities’ whether a recording or note is an accurate summary of a person’s wishes. Even deathbed changes to a will might be used to overrule an existing valid will.

It’s not hard to imagine the family fights:

• ‘How do we know Grandpa wrote that text?’
• ‘Auntie Nell did not look right in that video.’
• ‘I think Evil Cousin Jessie forced Pop-pop to say those things.’

What a tangled mess!

With that said, certain types of e-wills have been found valid and many courts have gone digital here in the USA.

Federal courts have required electronic filings since the 1990s and Delaware has used electronic filing — which requires pleadings to be e- signed by lawyers — for many years.

As background, the Uniform Electronic Transactions Act, promulgated in 1999, does not apply to wills, codicils or testamentary trusts. And the Electronic Signatures in Global and National Commerce Act, adopted by Congress in 2000, allows the use of electronic records and signatures in interstate commerce but also excludes wills, codicils or testamentary trusts.

Why not wills? Wills are fundamentally different from contracts for an obvious reason: the will-writer is dead when the family disputes begin.

So where are we with electronic wills in the USA?

There are a couple of US cases where electronic wills were accepted. In Tennessee the court accepted a computer-generated will ‘signed’ using a cursive-typeface different from the rest of the will. Two neighbor/witnesses e-signed the will — but they also signed a print-out. The court’s ruling was based on the principle of harmless error and is not a ruling per se which held that electronic wills are acceptable in Tennessee.

In Ohio, a terminally ill man wrote and signed a makeshift will with a stylus on his brother’s tablet. The court said the will was valid and that Ohio law only requires the will be in writing, not that the writing be in any particular medium.

Interestingly, electronic wills have been legal in Nevada since 2001, but are very rare. A review of Nevada lawyers, including websites, does not reveal any electronic wills. This may be because holographic handwritten wills are legal in Nevada.

Every other state requires paper wills that are signed by the will-maker.

Five states (Arizona, Indiana, New Hampshire, Virginia and Florida) have considered legislation to make electronic wills valid  — Arizona even called for biometric identification. While none have become law, in Florida a bill made it to the governor’s desk, where it was vetoed.

Concerns expressed by the Florida Bar capture the most obvious concerns:

1) Failure to protect from fraud and exploitation;
2) Issues with authenticating identity;
3) Security issues with storage, preservation and access; and
4) Incompatibility with existing law.

As a Certified Elder Law Attorney, I participate in a list serve where the vast majority of comments are opposed to electronic wills, citing the same reservations the Florida Bar expressed.

In 35 years of practice, I see that financial elder abuse is running rampant, and concern regarding fraud and authenticating documents runs high, nevertheless it is only a matter of time before e-wills are legal here. The UK may take the plunge when the ‘consultation’ time attached to their proposal runs out on Nov. 10. Perhaps they will find a way to address these thorny issues and show us the way. I welcome your thoughts on this timely topic.