Although it sounds far-fetched, an Australian court recently found that an unsent text message, created before the phone’s owner took his own life, was a valid last Will and Testament.
The court held that the text message, which included specific information about the deceased person’s financial assets and ended with the words “My Will” included enough information to show that he was aware of the nature and extent of his estate, and that he intended the message to be construed as a Will.
Would the ruling have been the same, had the deceased person been a resident of California? Let’s look at the requirements to create a valid Will in the state:
For a Will to be considered valid in California, it must be in writing, and must be signed by (or on behalf of) the person creating it. In the event someone else is signing on his or her behalf, it must be signed in his or her presence and at his or her direction. The Will signing also needs to be witnessed by two adults who both have to be physically present at the same time, and must understand that they are witnessing a Will signing.
However, several legal cases have introduced the “harmless error doctrine” in California, which says that if a Will was not witnessed by two people, it may still be valid if it can be shown by clear and convincing evidence that the person creating the will intended for it to be his or her Will.
To further complicate things, there is also a provision in California law that allows for “holographic Wills.” Although this sounds like the stuff of science fiction, a holographic Will is simply a will written in the handwriting of the person creating it, and signed by him/her. Holographic Wills do not need to be witnessed.
While it’s not 100% clear what the outcome would have been in California, had this case taken place here, relying on an unsent text message (or even a sent one, for that matter) is simply a bad idea.
You could avoid confusion by creating a Revocable Living Trust. When they are validly executed and properly funded, Trusts can eliminate the need for time-consuming and potentially costly probate court proceedings. The Trust agreement identifies one or more trustees who are empowered and charged with honoring your wishes for distribution of assets either shortly after your death, or over a longer period of time. Trusts can also be used for estate tax planning, to make charitable bequests, to protect inheritances for children from future creditors, including future divorcing spouses, and more.
Start the conversation now to ensure your estate plan meets all of the requirements to be valid in California, and to make sure your wishes are documented correctly.