The law permitting a digital or electronic will is rapidly developing. We have written about the idea of an electronic will before, advising readers not to rely on this developing law. A recent appellate court decision approved what appears to be the first purely electronic will in American legal history. Even as electronic will laws have been adopted in Nevada, Indiana and Arizona, this first electronic or digital will comes not from one of those states, but from Michigan. And, by the way, special thanks to our friend and colleague Doug Chalgian, an ACTEC Fellow from Michigan, for first writing about the new Michigan case.
About the electronic will in question
Duane Horton was just twenty-one years old when he took his own life. A conservator had been appointed to manage his finances, suggesting that his young life was already troubled. Like any millennial, he appears to have been quite computer-literate.
After Duane died, his conservator found an Evernote file on his cellphone. It apologized for what he was contemplating, gave instructions for his funeral, and then said, in part:
Have my uncle go through my stuff, pick out the stuff that belonged to my dad and/or grandma, and take it. If there is something he doesn’t want, feel free to keep it and do with it what you will. My guns (aside from the shotgun that belonged to my dad) are your’s to do with what you will. Make sure my car goes to Jody if at all possible. If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her. Not my mother. All of my other stuff is you’re do whatever you want with. I do ask that anything you well, you give 10% of the money to the church, 50% to
my sister Shella, and the remaining 40% is your’s to do whatever you want with…. Anything that I have that belonged to either Dad, or Grandma, is your’s to claim and do whatever you want with. If there is anything that you don’t want, please make sure Shane and Kara McLean get it.
Was Duane’s cellphone note a “will”? It was unsigned, had no witnesses, and was not in his own handwriting. Under traditional American probate laws, it clearly would not qualify as a will, or even as a holographic will (which Michigan law would have recognized). Although he typed his full name at the very end of the Evernote entry, it was not a “signature” in the traditional sense of the word.
The handwritten note
Duane also kept a written journal. In an undated entry, and in his own hand, he had written:
I am truly sorry about this … My final note, my farewell is on my phone. The app should be open. If not look on evernote, “Last Note”
Following that entry Duane gave his Evernote login information, including his password. Though this entry was entirely in his own handwriting, it was neither dated nor signed.
The probate proceeding and the Court of Appeals
The personal representative of Duane’s estate asked the probate court to admit his Evernote file as his will. The court agreed, over Duane’s mother’s objection.
Duane’s mother argued that the file could not qualify as a will. Instead, she insisted, he had died intestate — that is, without a will at all. Because his father had died before him, that would mean that Duane’s entire estate would pass to his mother.
On her appeal, the Michigan Court of Appeals considered whether Duane’s electronic will was effective. The appellate court decided that it was clear that it reflected Duane’s wishes, and that he had prepared it. Under Michigan law, that was enough to qualify the Evernote file on his smartphone as his will. Estate of Horton, July 17, 2018.
How about in Arizona?
Would Duane’s cellphone file have been a valid will under Arizona law? After all, we’re one of the leading states in the country — one of only three with statutes recognizing electronic wills. Would this document qualify?
The result in Duane’s probate proceeding would almost certainly have gone the other way in Arizona. Here’s why:
- Arizona’s digital will law won’t even be effective until July 1, 2019.
- Even if the law was already effective, Duane’s note would not qualify under Arizona’s new statutory authority. Arizona’s law still requires two witnesses and a digital signature — Duane’s file would not meet those standards.
- Duane’s handwritten note would not qualify as a holographic will under Arizona law, because he did not sign it. If he had signed his name, and perhaps written something like “I incorporate the notes in my Evernote file” (and including that file’s name), might his journal have been a holographic will in Arizona? Perhaps — but please don’t rely on that stretch in your own estate planning.
- Michigan, like Arizona, is a Uniform Probate Code state. Unlike Arizona, Michigan has adopted revisions to the UPC that permit consideration of documents that don’t meet the formal requirements for a will. This is sometimes called the “harmless error” rule. Arizona has resisted that change, and it was what the Michigan Court of Appeals relied on to admit Duane’s Evernote file as his “will.”
Duane’s life and death were tragic. His reliance on his cellphone to organize the transition was ill-advised — though it was ultimately effective.
But here’s an irony about the legal issues involved in Duane’s probate: legal scholars are scrambling to keep up with changes in society and our expectations about formal documents. But they are struggling with the wrong issues. Duane and people like him are not desperate to sign wills that look just like their grandfathers’ but on their computers. Instead, they want and expect to handle their wills, trusts, powers of attorney — everything legal that they touch — just like the rest of their lives. To them, that means that there is no difference between their cellphones, computers, journals, or formal legal documents. We (the legal system) aren’t keeping up.