13th Aug 2014
When you think of a will you think of witnesses, copies, stamps, lengthy processes, revisions, and stacks of documents. Not too many people automatically think of their cell phone when pondering a last will and testament. At minimum, in most of the fifty states, a will needs to be signed in the presence of at least two valid witnesses, as well as signed by the person making the will. (Click here to read our blog post on the estate planning dispute regarding Walt Disney’s will).
Oddly enough, Australian courts recently recognized a will typed into a cell phone by an Australian man as valid.
According to a local paper, The Australian, the man who typed his will on his cell phone was under duress at the time. After creating his cell phone will, he then unfortunately ended his own life. As expected, this document was not signed nor did it have any witness signatures. It did not meet what the United States’ legal system, which normally considers to be the lowest standards for a valid and true will.
Astonishingly, the Australian courts recognized this man’s will as being legally valid. The age of technology has officially been introduced to the legal world of estates, trust planning, and wills. The question as to why the court ruled this must be explored and answered.
The argument was made that the will was specific to this unique and particular circumstance. Furthermore, the attorney for the estate believed that this ruling would not set any kind of precedent for future wills and that future wills would be executed following the standard rules of the law.
The background of the argument rested on the extreme personal situation of the person who wrote the will. The attorney felt that this was a one-time situation, and the court system agreed with his argument.
The Past and Wills
This is not the first time an unusual will that was written not following the letter of the law was approved by the court system. In 1948 a Saskatchewan farmer was plowing his field, when he slipped and became trapped under the fender of his tractor. While entrapped, he used a pocketknife to write his last will and testament on the tractor. The statement indicted his wishes that all of his possessions and goods go to his wife if he did not survive this horrible incident.
After his passing, the court agreed that the will written on the tractor was valid. If you are ever in the area, you can actually view the fender and scratchings at the University of Saskatchewan’s College of Law. One can say with truth that he was indeed under personal crisis, as well.
The Age of Technology and Estate Attorneys
Technology advances these days look like something out of a science fiction movie. Every single day a new invention is debuted. The question is, have the laws concerning wills, estate and trusts kept pace with the wide world of technology? Even though the Australian court felt that declaring this will valid set no precedence, the truth is that any time a court decision is made, precedent is set. Arizona does, in fact, already recognize electronic wills. The idea has not really caught on with any of the other states yet.
Questions remain about the accuracy and credibility of a cellphone will. One could argue that with the absence of witnesses, pressure could have been used in the composition of the will. Removing the witnesses does open the arena of purpose and reason in a will that might be quickly and foolishly composed on a phone.
Additionally, a temporary disagreement or separation between parties could create a quickly written will on a phone that might otherwise not have been written. Changes in a will need time to percolate, so to speak. No drastic moves should be processed post haste due to anger.
The thought that a quick text message or phone note could erase an estate plan or will that may have taken months to construct concerns many legal professionals. This path will need to be carefully navigated in order for the legal system to stay current with technology, and at the same time keep the structure and standards of writing a will strong and credible.
For the Time Being
The legal system will monitor the world of technology carefully and adapt as necessary any laws concerning wills, trusts, and estate planning. Modifications will surely not happen overnight in the United States legal system. The changes will be slow enough to ensure that the integrity of the system is not compromised, yet still fast enough to be relevant in today’s crazy world of technology. Court cases concerning technology will proceed and some of the changes concerning wills and technology will be challenged. Case studies will occur as befitting these uncharted waters.
While you may be the biggest techno junkie around with an iPad, iPhone, laptop, and desktop computer; it is suggested that you still take the time to plan your trust and will carefully with an estate-planning attorney. You should still sign all the appropriate documents and yes, you should still have witnesses to your will. Talk with your attorney as needed and make sure the will is adjusted as your life changes. Keeping your will up to date is extremely important in the event of your death.
You have worked way too hard to earn a living and achieve a level of success to leave your will and estate planning up to a split second decision. You should not yet plan on writing out your will with a knife or putting it on your smart phone, no matter what the legal system might say with its decision in Australia. Just make sure that you are covered, you are pleased with your will, and you are comfortable that your attorney will stay abreast of developments and any new laws and decisions concerning technology and wills.