You are on a plane and hit a good bit of turbulence, or the plane drops in altitude suddenly, and you think to yourself that you never did prepare your Will, so you send a quick text to a family member or friend setting out your desires should you not make it. Of course, most of the time you worried for nothing, but what if the worst happens, would your text be considered a valid Will?
It all comes down to one archaic little concept: formalities. Will formalities go back centuries to a time when last wills and testaments were originally taken by a priest on the person’s deathbed. Over time, the law created formalistic “safeguards” to ensure that the Will reflected the true intent of the decedent. And those formalities still exist today.
There are two ways to create a Will in California: (1) a handwritten Will where the entire document (or a substantial portion) is in your handwriting and then signed by you; or (2) a printed document that is signed by you and then signed by two witnesses. Neither one of these options is particularly high tech, in fact the handwritten will is about as far from a text as you can get (other than maybe writing on stone).
But things are changing. Just six years ago, California added Probate Code section 6110(c)(2) that allowed the admission of Wills that do not meet all of the formalistic requirements, provided there is clear and convincing evidence that the document was meant to be a Will. Even so, it would be nearly impossible to validate a Will that has no handwritten signature.
Text messages are not in your handwriting, they are not signed with an actual signature, and they are not witnessed by anyone, so a text does not meet any of the traditional definitions for a valid Will. This prompts the question of what is a writing? In many ways a text is the modern equivalent of a hand written note. It is typed by the person creating it and it is often “signed” with a digital signature or at least a typed out name. Shouldn’t that qualify for a handwritten Will?
That remains an open question in California. There has been case law in other states that holds that a typed Will could be enforceable provided you are able to prove that no other person had access to the decedent’s electronic account. In other words, we allow handwritten Wills because we know for certain that only the decedent wrote it. If you can prove the same concept for a text or email or whatever (tweet, Facebook post, Snapchat?) then you could establish an electronic message as a “handwritten” Will.
Unfortunately, there is no California case law on point yet. Isn’t that ironic considering we are home to Silicon Valley? As of this writing, you can text your Will all you want, but it probably won’t be valid as a Will. And yet, if you grab a napkin and write out a Will with a pen, then that is undoubtedly a Will. So before you leave home, do a proper Will, or at least jot something down on a notepad and then sign it. When it comes to your Will, low tech wins the day.