Executing a will is meant to be a formal occasion. In Illinois, as in most U.S. states, the will must be in writing and signed by the person making the will in the presence of at least two credible witnesses.
Last month a court in Australia declared a will typed into the Notes app of an iPhone to be legally valid. According to an article in The Australian, the deceased person faced an “intense personal crisis” and typed his last wishes into his phone before ending his life. The “writing” was not signed or witnessed as required by Australian law, but the court still recognized it as a valid will. The attorney for the estate opined that the will was recognized under these very unique circumstances and that the ruling would not set a precedent for wills that are not executed according to formal requirements.
This is not the first time a foreign jurisdiction has relaxed its formal requirements for will execution. In 1948, a Saskatchewan farmer became trapped beneath a tractor. Using his pocketknife, he scratched into the tractor’s fender: “In case I die in this mess, I leave all to the wife.” The Canadian court recognized this “writing” as a valid will, and the tractor’s fender remains on display at the University of Saskatchewan’s College of Law.
Does the Australian ruling mean that everyone should pull out his or her phone and tap out a quick DIY will? Definitely not. Of utmost concern are the questions raised regarding the authenticity of the document if there are no witnesses: was what was typed into the phone just a draft instead of a final version? Did somebody access the phone and add provisions leaving money to him or herself? Was the deceased competent and thinking clearly when he or she typed the will?
With technology rapidly evolving, the formal requirements of executing a will may evolve as well. Nevada already recognizes electronic wills; however, the idea has been slow to take hold in other states. Until the law catches up to technology, the consequences of pushing the envelope could be harsh—if a court refuses to recognize an electronic will, the deceased person’s property will be distributed according to state law as though the person died without a will. This may or may not align with the deceased person’s actual wishes. Therefore, until the law progresses, adhering to the formal requirements of will execution (and relying on an estate planning attorney to draft the will and supervise the signing ceremony) is the safest bet.
And it may turn out that the Saskatchewan farmer was inadvertently on the cutting edge of the law of electronic wills. “In case I die in this mess, I leave all to the wife” is less than 140 characters. All he needed was a hashtag . . .