SHALL WE CHECK HIS TEXT MESSAGES? THE GROWING TREND OF CREATING WILLS IN THE DIGITAL AGE

By Thomas W. Shaver, Esq.,* Carlena L. Tapella, Esq.,** John M. Andersen, Esq.*** and Agnieszka K. Adams ****

MCLE Article

I. INTRODUCTION

In 2018, the Michigan Court of Appeals determined that an electronic note a decedent typed into his cell phone qualified as his last will and testament under Michigan law.¹ The Tennessee Court of Appeals ruled that a will where the decedent affixed an electronic image of his signature in the presence of two witnesses and died approximately one week after the will was witnessed had been executed in conformity with the law.² With the growing trend toward recognizing electronically prepared and signed documents in other areas of the law,³ California is poised to join several states that allow a testator to prepare a will in digital format. California Assemblymember Miguel Santiago (D – District 53) introduced Assembly Bill 1667 to amend Probate Code section 6113, and to add Chapter 2.5 to Part 1 of Division 6 of the Probate Code, to provide that a will created electronically is a valid last will of a decedent.⁴ This article discusses the current state of California law governing the execution of a will, proposed legislation as drafted and adopted by the Uniform Law Commission, the nuances of the legislation of other states that currently authorize electronic wills, and the experience and concerns of trusts and estates practitioners that should inform the recognition of electronic wills in California.