As you no doubt know, your will governs who will receive your probate property when you pass away. Probate property essentially means property in your name alone as opposed to property you own with someone in joint names, property in trust, or property with a named beneficiary, such as a retirement plan.
Under Massachusetts law, a will must be in writing and witnessed by two uninterested individuals over the age of 18. It can be handwritten, in which case it is called a “holographic” will. It is interesting to note that some states will not accept holographic wills at all, while others give them greater weight by not requiring that they be witnessed. Massachusetts is in the middle in simply treating handwritten and typed wills the same.
But what about a will typed on a computer, iPad or iPhone? Karter Wu committed suicide in Queensland, Australia, on September 2, 2011. Prior to doing so, he created a number of documents on his iPhone including one that started with the words “This is the Last Will and Testament” and set out the distribution of his entire estate, even naming an executor and successor executor. At the end he typed his name, date and address.
In light of all the circumstances, the Australian court admitted Mr. Wu’s will into probate. Probably a Massachusetts court would not have done so due to the absence of witnesses.
Many years ago, I was appointed as conservator for an elderly woman who a local hospital thought was homeless. (In those days, they called her a “bag lady.”) It turned out that she had an apartment and substantial assets. In her apartment, which was as disheveled as the lady herself, we found a small pocket diary. Not much was written in it, but on one page we found the following:
L, W & T
I give my estate to the Boston Athenaeum.
That was the extent of any will or trust we found among the woman’s papers. We hired a genealogy service to try to find relatives of my ward, but it came up empty handed (but more on this later). Clearly, this page in the woman’s diary would not be admitted to probate given the absence of her signature or witnesses. However, it was the only statement we could find of her testamentary intent — who she wanted to receive her property. I contacted the Boston Athenaeum, which is a venerable private library on Beacon Hill, and they knew the woman well as a frequent user of its facilities until her dementia became too far advanced.
While the diary page would not be accepted as a will, we were able to put it into effect by petitioning the probate court for authorization to create a trust for the lady’s benefit during her life, with the balance at her death to pass to the Boston Athenaeum.
Imagine my surprise when after the woman’s death two distant relatives surfaced to challenge the trust. After some persistent questioning, we were able to establish that the genealogical company we had engaged had withheld information from us and contacted these distant relatives with an offer to share any estate proceeds they received. After those facts were on the table, we were able to settle their claims for a relatively paltry sum.
Getting back to the question of whether an unsigned or unwitnessed will might be accepted into probate, it depends in large part on where the person dies. Some states, other than Massachusetts, and some countries will accept non-signed or non-witnessed wills as long as the surrounding facts establish that they are clear statements as to the decedent’s wishes with respect to the distribution of her property.
On a related topic, I’ve often wondered why we require the formalities of a signature and witnesses for a will when most property these days passes outside of probate. A deed with a joint owner or a life estate does need a signature and a notarization, but no witnesses. A payable on death bank account or annuity can be established without a notary or witnesses. Many financial institutions permit clients to name or change beneficiaries on line. More on this in another blog post.
Margolis & Bloom, LLP, practices estate, long-term care and special needs planning in Boston, Dedham, Framingham and Woburn with a strong commitment to client service. If you have questions about these or other legal matters, do not hesitate to contact us by e-mail by clicking here or by calling us at 617.267.9700.