Where There’s a Will, There’s a What?

Valid Forms of Wills: Exploring Traditional and Modern Approaches, Including Text Messages and Phone Calls

Wills are essential legal documents that express a person’s final wishes regarding their estate, from distributing assets to appointing guardians for dependents. Traditionally, a will had to be in writing, signed, and witnessed to be legally valid. However, in today’s fast-paced digital world, questions arise about whether more modern forms of communication (like text messages and phone calls) can also hold legal weight when it comes to wills. This blog post explores the evolution of valid wills, focusing on both traditional methods and the potential validity of newer, tech-driven approaches.

The Traditional Form of a Will

Historically, the most recognized form of a will has been a written document, typically called a “last will and testament.” To ensure a will’s validity, it typically must:

1. Be in writing: The will must be a written document, either handwritten (holographic) or typed.
2. Be signed: The testator (the person making the will) must sign and date it.
3. Be witnessed: Two or more witnesses must observe the testator signing the will, or the testator must acknowledge their signature in front of witnesses. The witnesses should not be beneficiaries of the will to prevent conflicts of interest.
4. Be executed voluntarily: The testator must not be under duress or mental incapacity.

This written format has been the standard for centuries, providing a clear, legally binding record of a person’s intentions. In some jurisdictions, notarizing the will (having a notary public sign) adds an extra layer of legal verification, though it’s not always required.

Entering the Digital Age: Text Messages and Phone Calls as Wills

As communication increasingly moves online, questions about the validity of modern forms of wills, like text messages or phone calls, are becoming more prevalent. Can these informal methods stand in for a traditional, handwritten will? While the answer varies depending on the jurisdiction, there are certain trends emerging in some regions.

1. Text Messages as Wills

In some circumstances, a text message may be considered a valid will or part of a will, but the standards differ greatly by jurisdiction.

• Jurisdictions that Allow Digital Wills: Some countries, including parts of Australia and Canada, are beginning to allow electronic wills, including text messages, to be valid. These laws often specify that the testator must demonstrate their intention to make a will through digital communication, and the will must be signed electronically (e-signatures).
• Issues of Authenticity and Interpretation: While a text message may reflect someone’s wishes, it may not meet the traditional criteria of a formal will. For example, there’s often no clear record of witnesses or proof that the person was mentally competent at the time. Additionally, a text message may be seen as too informal and vague, lacking the detail typically found in a properly drafted will.
• Practical Examples: In cases where no formal will exists, some courts have accepted a text message as evidence of a person’s intentions, particularly in situations where the testator passed away unexpectedly. However, this is still a gray area legally, and these cases are often challenged in court.

2. Phone Calls as Wills

Phone calls, much like text messages, represent another informal and potentially problematic way to express final wishes.

• Oral Wills: In some jurisdictions, an oral will (also known as a nuncupative will) can be valid under certain circumstances. These wills are often used in emergency situations when a person is unable to create a written will due to illness or other limitations. However, oral wills are subject to strict requirements, such as the need for witnesses who can attest to what was said during the call. This kind of will is often only valid for small estates, and many states do not recognize it for large or complicated estates.
• Phone Call Issues: While a phone call may seem like a quick way to express final wishes, it lacks the formality of a written will. The most significant concern is proving the caller’s identity and that the wishes expressed on the call were genuinely those of the deceased person. Like text messages, phone calls do not typically meet the formal criteria for a valid will, such as being signed and witnessed.

3. Emerging Legal Trends

Some regions are considering reforms that could make electronic wills, including text messages and phone calls, more widely accepted. These trends largely center around the idea that technology should keep pace with society’s advancements in communication. However, there are still considerable legal hurdles to overcome:

• Technological Advancements: Some legal systems are exploring methods of recording digital wills, such as through video calls or digital platforms, where a notary or legal witness could authenticate the will in real-time. Such methods might make it easier for individuals to create valid wills remotely.
• Legal and Regulatory Uncertainty: There is no universal standard for digital wills, and as such, their validity remains inconsistent. Until clear national or international laws are established, the use of modern communication methods like text messages and phone calls for creating wills is still uncertain and should be approached with caution.

Why Traditional Wills Still Matter

While modern communication methods like text messages and phone calls might offer convenience, they still fall short of the safeguards offered by traditional, written wills. Here are a few reasons why a traditional will remains the best option:

• Clear Intentions: A formal written will ensures that the testator’s intentions are clearly expressed, leaving little room for misinterpretation.
• Legal Requirements: A traditional will meets the legal requirements of most jurisdictions, making it less likely to be contested.
• Witnesses: The presence of witnesses helps verify the authenticity of the will, preventing fraud or undue influence.

Conclusion: A Cautious Approach

While the idea of using text messages or phone calls as a valid will might seem appealing in the modern age of digital communication, it’s still a gray area in many legal systems. Until more consistent laws are created to accommodate these new forms of communication, it’s always advisable to create a formal, written will. This traditional method provides the most security, clarity, and protection for both the testator and their loved ones.

If you’re considering creating a will, it’s essential to consult with a legal professional to ensure your wishes are clearly documented in a manner that will hold up in court. Whether you choose a handwritten will, a typed document, or decide to explore newer forms of digital will-making, getting legal advice will give you peace of mind and help ensure your wishes are honored.