Electronic Wills Increase Risk of Fraud
There are many probate lawyers in this country but few litigators that handle forged wills and undue influence cases. We support making it easier for bedridden people to craft a last will to assure their last wishes are heard and understood. There is a very small but growing trend for people to craft electronic wills. Are these new age wills the wave of the future or a recipe for fraud?
To answer that question, some brief history is helpful. For a will to be admitted to probate, certain formalities must be followed. These requirements are dictated by state law but pretty much follow similar patterns:
a) the will must be in writing (oral wills present their own fraud problems),
b) must be signed, and
c) must be “attested” and witnessed.
The latter requirement can be very specific depending on the state.
The requirement for having wills be in writing and properly witnessed goes back hundreds of years. The English Statute of Wills in 1540 required very specific formalities; requirements that are still in effect today in almost every state.
Why? Having a formal and properly witnessed will serves several purposes. First, it is a reminder to the person making the will of the seriousness of the process. Considering that wills today can specify who should care for minor children, making a will requires some thought and shouldn’t be something that is hurried.
A “formal” will process also prevents fraud. Of course, forged wills will always be a problem but getting two witnesses and a notary to go along with a fraud is very difficult. The more formal and rigorous the process, the lower the risk of fraud. Make it too rigorous, of course, and people who really need wills might not be able to create one in an emergency.
To our knowledge, only Nevada has a specific provision for electronic wills. With so many tablets, phablets, smart phones and computers, we suspect many people have made electronic wills notwithstanding that they may not survive judicial scrutiny.
Are these electronic wills enforceable?
There is little direction from the courts. In a 2013 Ohio case, Javier Castro was hospitalized in grave condition. With his brothers at his side, he dictated his will to one of his brothers who “wrote” it with a stylus on a tablet computer device. Javier then used the stylus to “sign” the will. After his death, the brothers printed the will and asked an Ohio probate judge to accept the will.
The court allowed the will but not because it complied with the standard legal writing and attestation (witnessing) requirements. Ohio, like most states, has a catch-all will saving law that allows the court to accept an otherwise noncompliant will if the person presenting it can prove the document represented the dead person’s true last wishes.
Of course, without proper authentication and witnesses, the possibility of a forged will or undue influence increases dramatically.
We suspect that courts will continue to wrestle with this question. On the one hand, courts should do everything possible to see that a person’s last wishes are honored. Those same concerns require the court to also protect that person’s wishes from fraud and dishonest relatives and caregivers.
We have surveyed the landscape and find a mixed bag of court cases. There are so few cases, however, that it is hard to see a trend. Wyoming rejected an audiotaped will while Indiana allows video taped wills (again if properly witnessed).
Technology will probably evolve faster than state legislatures can act. With many states having laws on the books that essentially date back 500 years, we predict many electronic will disputes in the upcoming future.
If you have not already drafted a will, we urge people to contact a probate lawyer or even use an online service such as LegalZoom. Both have users print and sign paper copies of the will and always require proper witnessing.
If you believe that someone has exerted undue influence over a loved one or made a forged will, contact us. Our litigation team has handled cases in 28 jurisdictions. Depending on where the will was probated, we can handle the case alone or with local counsel.
The forged will lawyers at Mahany & Ertl are not probate lawyers. We do not draft wills and do not probate estates. We are ready to jump in, however, when fraud takes place. In addition to forged wills, we also handle a wide range of elder financial abuse problems.
Need more information? Check out our text searchable Due Diligence blog (1100+ articles) or contact the author of this post, attorney Brian Mahany at or by telephone at (414) 704-6731 (direct). All inquiries kept in strict confidence.
Tagged as: Forged will, elder abuse, senior fraud, undue influence, probate fraud
(image by Grant Cochrane courtesy of freedigitalphotos.net)