A note on a cell phone — can that be a will? Yes, said the Court of Appeals this past year in Horton. There, a man left a short handwritten note directing the viewer to see a “farewell” note on his cell phone. His cell phone contained a typed note stating where he wanted his assets to go. The cell phone note was not dated, did not contain his signature, and there were no witnesses to him typing the cell phone note. His mother argued that the cell phone note was not a valid will.
Typically, for a will to be valid, it must be signed and witnessed by two people. However, there is an exception if “clear and convincing” evidence shows that the writing was intended to be the deceased person’s will. MCL 700.2503.
In Horton, the Court of Appeals analyzed the language in the cell phone note, and the handwritten note, and determined that the cell phone note was intended to direct where his assets went at death and was therefore a valid will.
The takeaways?
First, an attorney-drafted will avoids the question of whether the document was intended to be a will. The people in Horton went all the way to the Court of Appeals to answer the question of whether this cell phone note was a valid will. Second, this case is a glimpse into how technology is changing our behavior and the law. We expect more cases in the future to test the validity of electronic wills. In the meantime, paper wills and pen signatures are best until the law has further evolved. Beware — cutting corners on your estate plan can lead to court battles.
