What Counts as a Will?

What Counts as a Will? Episode 315 – Can you write your own will simply by recording a video with your cell phone? Not so fast, a Montana court has ruled. In many cases, it needs to be in writing. More SML Planning Minute Podcast Episodes Transcript of Podcast Episode 315 Hello this is Bill Rainaldi, with another edition of Security Mutual’s SML Planning Minute. In today’s episode, what counts as a will? We’ve talked a lot about wills in the past, particularly with regard to missteps by celebrities such as Lisa Marie Presley, Casey Kasem and Aretha Franklin. But a recent article in the Wall Street Journal sheds light on what legally counts as a will and what doesn’t. All the way back in episode 125 we talked about the strange case of Cecil George Harris, a Canadian farmer who died in 1948. On the morning of June 8, Mr. Harris informed his wife that he would be out working on the family farm with his tractor, and not to expect him back for 10 to 12 hours. Tragically, while out working on the farm, Harris got into an accident with the tractor and ended up being pinned underneath it. Realizing he was now in serious trouble and not expecting help anytime soon, Harris pulled out his pocketknife and etched what would become his will into the tractor’s fender. The message simply read “In case I die in this mess I leave all to the wife. Cecil Geo Harris.” Harris did not survive the accident. The fender was later submitted to the probate court, and the court accepted the scratched message as a valid will. The recent Wall Street Journal article discusses the case of Jesse Beck, who died in 2022.[1] Beck had recorded a selfie video in which he left all of his possessions to his brother. [2] Beck’s motivation was apparent hostility towards his ex-girlfriend, whom he specifically said should not receive anything.[3] Beck died suddenly four days later after an accident with his motorcycle. He and a bystander, who had stopped to help, were killed when they were hit by a first responder’s vehicle.[4] But a Montana-based court ruled recently that the video, which was authentic, did not count as a will.[5] The main difference between the two cases is: Cecil George Harris recorded his will in writing, albeit in a rather unusual way. Jesse Beck did not. State law differences may also be in play. According to the Wall Street Journal, “While most of the business of life has gone digital, estate law remains rooted to ink on paper.”[6] In other words, in order to qualify, a will has to be in writing.[7] Had Beck scribbled everything down, it would have counted. Just saying so doesn’t cut it, at least in Montana, where Beck lived. Things vary from state to state. Many states will accept a handwritten will without any witnesses, like in the case of Mr. Harris. This is often referred to as a “holographic will.” And about a dozen states recognize electronic wills or “e-wills.” E-wills are often written, signed and recorded digitally. But they still need to be in a text format. Audio or video generally won’t work.[8] In the case of Jesse Beck, there was an immediate conflict. Beck’s sole legal heir was his daughter Alexia, who wasn’t mentioned in the video.[9] Without a proper will, everything goes to her. Alexia and her uncle are each claiming the right to the proceeds of the estate. It is unclear how much money Mr. Beck had at the time of his death. But due to circumstances of the accident, there is a pending wrongful death suit.[10] So it may be a while before everything is resolved. Either way, the lesson is a simple one: You never know what’s coming the next day. Get your will done, in writing, with a qualified estate attorney. [1] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [2] Elder Law Answers For Attorneys “Montana Supreme Court Affirms Video Does Not Count as Will.” attorney.elderlawanswers.com. https://attorney.elderlawanswers.com/montana-supreme-court-affirms-video-does-not-count-as-will-20771 (accessed Jan. 6, 2025). [3] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [4] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [5] Elder Law Answers For Attorneys “Montana Supreme Court Affirms Video Does Not Count as Will.” attorney.elderlawanswers.com. https://attorney.elderlawanswers.com/montana-supreme-court-affirms-video-does-not-count-as-will-20771 (accessed Jan. 6, 2025). [6] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [7] Elder Law Answers For Attorneys “Montana Supreme Court Affirms Video Does Not Count as Will.” attorney.elderlawanswers.com. https://attorney.elderlawanswers.com/montana-supreme-court-affirms-video-does-not-count-as-will-20771 (accessed Jan. 6, 2025). [8] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [9] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). [10] Ebeling, Ashlea. “Yes to Text Messages, No to Video: What Counts as a Will.” WSJ.com. https://www.wsj.com/personal-finance/his-will-was-a-selfie-video-but-courts-ruled-it-didnt-count-75e90cf8 (accessed Jan. 6, 2025). 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