There is no such thing as an iPad Last Will App, but a judge in Ohio ruled recently that a Will written on a Samsung Galaxy Tablet, because no paper was allegedly available, is a valid Will. That ruling naturally raises the spectre of Will apps for iPhones, iPads, Andriod devices, and the sky is the limit.
The ruling was reported in local newspaper article. The man had a serious health condition and death was imminent. He was in the hospital and was not likely to leave the hospital with the breath of sweet life in his lungs. Expediency and common sense seem to be the basis of the ruling. So what are the implications?
The state of Ohio does not recognize electronic Wills. Reportedly only Nevada, among the 50 states, recognizes electronic Wills. The judge in this case made the obvious comment: “…it would be good to have some guidance” (meaning some action from the state legislature).
Every state has a probate code created by the the state legislature in which those formalities are codified. The implications of the ruling should be considered in the light of the current rules for creating a Will and why those rules exist.
The rules for creating or determing a vaild Will actually go back in time to decades and centuries of cases decided under every imaginable set of facts and circumstances. The rules were forged in the cricuble of human conditions and circumstances over many, many years and reflect the common sense and wisdom of very smart people who have tested those rules through inumerable rel life situation. This is called the “common law”. It is the common law that has been codified into the probate codes of each state, with some tweaks and variations.
The rules are designed to protect the testator (person who does a Will) and the beneficiaries of their bounty. They are designed to protect against fraud, undue influence and people taking advantage of persons who are unable to protect themselves (deceased testators). They are designed to protect the integrity of the documents that we call Wills (or Last Wills and Testaments). As long as there are people who are unhappy with Wills, there will be Will contests; and we need standards by which the validity of Wills must be measured.
As a side note, elemental constitutional law suggests that judges are not legislators, but are sworn to interpret and uphold the laws of the land. When legislatures make laws, judges are sworn to interpret and iphold them. When judges forget their roles and make “expedient” rulings, the precedent that is established by that expediency can be problematic indeed. “Bad facts make bad law” is the phrase we lawyers use for these expedient rulings because we must struggle with how to implement the precedent these rulings make. What might make “sense” under very unusual and unique factual circumstances rarely makes sense for broader application.
In Illinois, every will must be in writing, signed by the testator or by a person in his presence and at his direction and attested in the presence of the testator by two or more credible witnesses. (765 ILCS 5/4-3) There are other provisions relating to who can (and can not) be the witnesses, what the attestation must be and other things, but those are essentially the requirements. Most attorneys take additonal precautions and steps to make sure that Wills are not subject to challenge and are easily “proven” in court, without unnecessary delay or difficulty. Nothing is worse than a client’s son or daughter asking, “why didn’t you __________?” [fill in the blank], especially when conventional wisdom and best practices suggest taking the extra steps to protect the integrity of a Will and to simplify the proving of the Will in court. You can bet another attorney will be quick to question any lapses.
Consider then the recent ruling validating a Will written on a tablet. The judge theorized a Will could be chiseled on a stone with a hammer. At least, a Will on a stone tablet would be impossible to change. A Will on an electronic tablet can be easily changed and manipulated or erased by anyone with access to the device. If there are multiple versions, which one is the correct one? Which one is the Last Will & Testament of the person who created it? How do we know that the most recent version was not created by someone who came along later?
If handwritten or printed Wills are susceptible of being manipulated or forged, how much more susceptible is a Will created and left in electronic media? At least with Wills on paper, initials can be affixed on each page to ensure that language is not added at the end or inserted in the middle. The handwriting of handwritten Wills can be examined for inconsistencies.
Wills tattooed on a body, written on a cave by a trapped miner and “Wills” created by soldiers dying of mortal wounds have been accepted. There is some precedence for “common sense” application of the law. A tattooed Will would be hard to forge (though revoking one might be painful!). A miner’s Will written on a cave wall, even without witnesses, carries with it some built-in assurance that the testator’s intentions, and not some one else’s desires, were expressed. The same is true of a dying soldier’s scrawled notes given to a comrade.
Electronic media presents many challenges to old law. The ease and access of electronic media invite many more examples of unconventional Wills. I could see YouTube Wills popping up. As one person has observed, “a video of a person reading their will aloud would be the most convincing proof of its content and their capacity that could be wished; though it makes filing the will in public records a real mess ….”
One problem with an electronic Will is the lack of an “original”. Duplicates are too easily generated or even automatically generated without intention in cyberspace – all appearing exactly as the “original”. How are they to be filed with the Court? If one wants to revoke an electronic Will and write a new one, how does one revoke the old one? “Trying to revoke that will by destroying the original will be as hard as hunting and destroying horcruxes,”observed one attorney.
There are so many issues with electronic Wills that any ruling approving one opens a Pandora’s box. State legislatures are notoriously slow to address issues created by changes in modern technology. We could wrestle with the implications of such a ruling for years, with very mixed and unsettling results, until legislation is drafted to allow for electronic Wills in a fashion that provides safeguards and protects the integrity of electronic Wills and standards by which to judge them.
Going back to our case in point, Ohio law would have resulted in the man’s estate going to his parents if the elctronic Will was invalidated. His parents testified that they would have distributed his estate as he wished it to be distributed. The judge’s out-on-a-limb ruling seems a bit hasty and rash in that light. The ruling leaves more questions than answers. At the same time, it invites others down the same road. That path has no guideposts, and common sense people are encouraged to not venture there until state legislatures chart the territory. Without more guidance, one cannot be sure where that road will lead.