Text, Tape and Pixels in the Making of Wills

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Text, Tape and Pixels in the Making of Wills^*

Peter M. Tiersma

As people become increasingly accustomed to new technologies for communicating and storing information, the pressure to allow wills to be made in novel ways is likely to intensify. Even if the profession defends its textual practices and the primacy of the written word, it may have to give way if torrents of video wills or e-wills start to appear in court. If they have not yet done so, people will almost certainly try to create wills in the form of a multimedia presentation, with graphic images of the items they wish to bequeath, links to their bank accounts or to property descriptions in the county recorder’s office, and video clips of the testator explaining who should get what. Can the law continue to insist that a valid will must be a written text of some sort, preferably made by placing ink on paper?

People have already started to experiment with audio and video wills. A lawsuit from Wyoming involved a tape-recorded (audio) will that was contained in a sealed envelope on which was handwritten “Robert Reed To be played in the event of my death only! [signed] Robert G, Reed.” The proponent argued that it could be viewed as a valid “holophonic” will, akin to a holographic will. In Wyoming, a holographic will must not just be signed, but it must also be entirely in the handwriting of the testator. The will’s proponent suggested “that in this age of advanced electronics and circuitry the tape recorder should be a method of ‘writing’ which conforms with the holographic will statute.”¹

The court acknowledged that in evidence law, a tape recording might well be considered a “writing.” Yet the rules of evidence did not change the substantive requirement of a writing in wills law. Hence, the tape recording was not a legally effective will.² To date, no American case has held that an audio recording can be a valid will.³

Recently, it is not uncommon to make a video that shows the testator executing the will. A video recording can constitute valuable evidence of whether there was undue influence or whether the testator had capacity. But can a person’s oral statements, if recorded on videotape, take the place of a will written on paper? Despite predictions about how videotape and other “paratextual” communication technologies will revolutionize the law,⁴ virtually no jurisdiction, if any, considers a video recording to be a writing that satisfies the requirements of wills law.⁵

It seems likely that there have been or will be additional cases on the validity of audio and video wills. Nonetheless, they have clearly been a rare species, and in my opinion audio and video are likely to remain adjuncts to will making, mostly as a means of presenting evidence regarding whether the testator still had his wits about him.

E-Wills

What about wills stored on a computer? A computer can easily deal with sound and graphics these days, making it possible for a testator to orally state her will and have it captured in a digitized form that is preserved on a hard drive or other storage medium. Despite the more modern technology, it remains an audio recording that is not all that different from an old-fashioned recording on tape. The same is true of video, which can also be either recorded on tape or captured by a computer in digital form. None of these recording technologies produces a writing, so they are likely to remain marginal in the culture of will making.

Electronic wills, on the other hand, can consist entirely of written text. Although letters of the alphabet are presented on a computer display as tiny dots, or pixels, and are printed in a similar fashion, the overall impression they create is one very similar to traditional writing with ink on a sheet of paper.

Given that in many American jurisdictions a handwritten and signed letter, or a scribbled note with a signature, can constitute a valid holographic will, it may seem strange that the status of an e-mailed will or one contained in a file on a computer’s hard disk is currently very uncertain. If you print it and properly execute it (with two witnesses, etc.), there is no problem, of course. On the other hand, if you print it and sign it, without witnesses and the other formal requirements, it will almost certainly be invalid under the current law of most states.

What if the will is not printed out but resides solely on a computer or in cyberspace somewhere? To date, the only state to allow true e-wills is Nevada, which has enacted legislation on the issue. Such a will must be created and stored in such a manner that

Moreover, it must contain the date and the electronic signature of the testator and include at least one authentication characteristic (such as a retinal scan or fingerprint) of the testator.⁶ It’s hard to imagine that many Nevada residents have taken advantage of this innovative statute. I would think that if your computer is attached to a printer, it is less risky and more efficient to press the print button and to sign the will in the presence of two witnesses. Admittedly, the law might be useful for technologically savvy hermits or astronauts in space, especially if they do not have access to a printer or cannot locate two witnesses.

As far as I can tell, there has not yet been a case testing the validity of an e-will (one that has not been printed) in American states.⁷ There is, however, a case from Quebec, Rioux v. Coulombe, involving a will on a computer diskette. After being printed on paper, it was admitted to probate.⁸ Quebec is a civil law jurisdiction, however, whose law is more similar to that of France than to the common law of England or the United States.

There is a case from Tennessee in which a man composed a will on his computer and, in the presence of two witnesses, attached a digital signature (apparently a scanned version of his normal signature). The witnesses then signed the will. The facts are not entirely clear, but it seems that it was printed before the witnesses signed it. The court held it valid, in large part because Tennessee defines a signature as including any mark intended to authenticate a writing.⁹ The fact is that courts tend to be fairly relaxed regarding the signature requirement; a mark or very informal signature often suffices. But they have been quite strict in enforcing the rule that a will must be written, and because in this case the will seems to have been printed and then signed by witnesses, it does not deviate much from current practice.