Recently, the Supreme Court of Australia declared a last will and testament typed entirely into an iPhone note application valid. The note was titled “Last Will and Testament;” it disposed of all of the testator’s belongings; it appointed an executor; and it had the testator’s name typed at the very end, similar to a regular will, but it did not have any witnesses. In the age of the smartphone, and reducing paper consumption, the questions become can a will be written on a smartphone, and can a copy of a will be admitted to probate instead of the original? The answers are not often and not easily.
Generally a valid will requires an original document signed by the testator at the bottom, and witnessed by at least two witnesses who saw the testator sign the will. Without these components, a will is typically not valid. However, some states allow a petitioner to establish the validity of a non-compliant will by clear and convincing evidence.
Michigan has adopted the Uniform Probate Code, which states if the petitioner establishes by clear and convincing evidence, a document or writing was intended by the decedent to be a will, regardless of whether it was properly executed under Michigan law, the probate court may admit the will to probate. Under Michigan law, an iPhone will might actually be admissible if the petitioner can establish the testator intended the document to be a will. This involves a hearing. However, only 17 states to date have adopted the Uniform Probate Code, therefore it is in a very limited circumstance that this law might be applicable.
Contrary to the Uniform Probate Code adopted in Michigan, Ohio’s statute on noncompliant wills still requires the testator to sign in the presence of two witnesses. Therefore, in Ohio, if a will wasn’t properly executed, so long as the petitioner can establish by clear and convincing evidence that two witnesses saw the testator sign, the will may be declared valid. Since Ohio always requires witnesses, an iPhone will will not be admissible.
Not only must a will be signed and witnessed, the original must be admitted. In Florida, if an original will is not submitted, the will is deemed revoked. At that point, the petitioner may request a hearing to establish by clear and convincing evidence that a will is not lost. In Ohio, there is a statutory procedure to validate a lost will. This happens in a hearing where the petitioner establishes by clear and convincing evidence both that a will was properly executed, and the contents of the will. Scanning a will and disposing of the original does not create a valid will, and a hearing will be required.
While we are becoming automated and storing more electronically, a will still needs to be in writing, signed, and witnessed. Wills can always be deposited with the court where the testator resides, if the testator does not want to keep the original.
While there are ways to admit an improperly executed will to probate, it’s a significant expense, and there is no guarantee that the will will be admitted. So, until there is a statute compliant will application, wills should be executed on paper in front of witnesses.