Another day, another attempt at a DIY will. If you recall, I’ve written about wills typed into an iPhone (Australia) or written on a tablet with a stylus (Ohio) being upheld, but have cautioned against relying on such outlier cases until the laws catch up to technology. Case in point: a decision out of Sweden, where, before committing suicide, the deceased sent text messages to his friends and family purporting to leave his assets to them after his death. The Swedish appellate court ruled that the text messages did not constitute a valid will.
This case is undeniably a tragedy, but does raise questions about other hypothetical scenarios. Let’s imagine you have a friend named Ben. What if he texted you and other friends and family several days before being killed in a car accident? Would such text messages be upheld as a valid last will in Illinois? Not a chance.
Recall that in Illinois, signing a will is a formal ceremony that must be done in front of two witnesses. These witnesses help establish the validity of a will once the person who created it is deceased and obviously can no longer speak to the circumstances under which the will was signed. Without witnesses, there is less certainty as to the deceased’s intent. In Ben’s case, was he in his right mind when he sent the texts, or was he under the influence of any substances (legal or not)? Did someone gain unauthorized access to his cell phone and send the texts? Did autocorrect change “I give you my ABBA albums” to “I give you my IKEA armchairs”? An unwitnessed will simply leaves too many questions unanswered.
But what if Ben devised a scheme whereby he texted his wishes, then had two witnesses text the same friends to confirm the “will” was witnessed, thereby complying with the witness requirement and outsmarting the sometimes archaic law of wills? Who’s to know if it would stand up in court, but estate planning attorneys would likely appreciate such creativity due to the mountain of work it would create to sort out such a mess.
The easiest route is to simply follow all of the statutory requirements when signing your will. Be creative at your own risk. At best, it could be awkward when an estate planning attorney blogs about your unique situation. At worst, a court may refuse to recognize your purported last will and distribute your assets in a manner you did not intend.