Normally (here in the U.K.) wills have to be witnessed and there are certain formalisms involved.
I was watching a dramatisation of an airplane crash. At one point a background character is shown with what looks like a dictaphone. Now, if I were in a plane that was in serious trouble, would I be able to dictate a (necessarily short) will on the spot and have it held valid afterwards?
The answer will vary from one jurisdiction to the next, IANAL, YMMV, etc. Under Wisconsin law, such a recording would not be considered a legal will. The standards for a legal will are set forth in the statutes and Wisconsin specifically requires that a will be in writing and be witnessed. Wisconsin law does allow for an unwitnessed letter of intent for disposal of property, written into the law (according to my estates professor) in large measure because so many people thought it was legal already. Such letters should not be used for major disposal of property but are useful for such things as “When I die I want my friend Mary to have my diamond earrings.” I do not know whether an audio tape would serve as such a “letter” or not.
“dying declaration” is an exception to the hearsay rule of evidence. Which doesn’t have much to do with the formalities for making a will valid.
As David Simmons said, some jurisdictions recognize holographic wills. If you were on an airplane that was going down, it would raise some choice of law questions – do you use the law of the jurisdiction the plane is over when you write the holographic will? Do you use the jurisdiction that the vessel (plane) is registered in? I don’t know.
I recall reading somewhere (Ripley’s Believe it or not?) that the shortest will on record was a British seaman that died in a raft in the Atlantic after his ship was sunk
“All to mother”
I am guessing that at least under some conditions an unwitnessed will will work.
Holograph wills are valid in Saskatchewan, with one of the most famous that of a farmer who was pinned under his tractor and scratched his will onto the fender. The Court admitted the tractor fender to probate.
The fender is still on display in the Law Library at the U of Sask.
The usual rule is that succession for personal property is governed by the law of the deceased’s domicile, and that real property is governed by the law where the real property is located.
Not my area of law, but that’s my understanding - the will has to comply with the law of the court where it’s being filed and probated, not where it was drafted.
It’s still the law of the domicile or location of the real property. As with the statute you cited, some jurisdictions will accept a will as valid if it would be valid where executed. It is only that statute that makes the law of the place of execution relevant.
As to the OP, it isn’t outside the realm of possibility that an audio recording could be considered valid, but a safer bet would be to just handwrite the will on whatever is available and sign it at the bottom. I don’t know about the UK, but American courts are probably unlikely to accept the audio recording as a valid will. It probably wouldn’t meet statutory requirements like “signed,” “writing,” or “document.” Even witnessed videotapes have been rejected. It will ultimately depend on the language of the relevant statute and case law in the jurisdiction, but I wouldn’t do it if I could instead use the time to scribble something out.
IANAL. This is not legal advice. All other standard disclaimers.
IIRC from my law school Wills and Probate course (not-so-affectionately known as “Stiffs and Gifts”), any statement made by the decedent under circumstances indicating that it was the genuine desire of the decedent will at least be considered by the probate court. That might include a message scratched into a tractor’s fender, a dictaphone tape, an undated letter that can be reliably identified as being in the decedent’s handwriting, or even a conversation with another person (esp. if that person’s recollection isn’t self-serving). Such a statement will hardly ever trump an otherwise-valid written will, of course (never say never!).
In my experience, most probate judges really do their best to comply with decedents’ wishes.
Only within their own jurisdiction. In order to apply a statute, you must be applying the law of the jurisdiction where it is in force. Validating statutes look to the law of another jurisdiction, but you are still applying the statute, and therefore the law of South Dakota in your example. The law of South Dakota just happens to tell you to look at the law of execution and the law of domicile or residence at the time of the execution. If you weren’t applying South Dakota law in the first place, that statute wouldn’t be relevant.
I’m not sure if you’re asking for a cite for what I attempted to explain above or the general rule that a will’s validity is determined by domicile or situs.
It’s tricky really. There really is a lot of variation between states, as others have said. I’ll take Ohio and Michigan as examples, because they really are very different.
Ohio statutes recognize two kinds of valid wills:
Written:
Both require witnesses. If you die without one of these, the rules of intestate succession apply, and there’s really no room for the intention of the testator.
OTOH, Michigan has statute that recognizes close tries:
Suppose a dispute is being heard in a court in State A, and State A’s choice of law rules require that the substantive law of State B be applied. Would you say that the court in State A is applying the law of State A, or the law of State B?
My impression is that you would say the court in State A is applying its own law, but I want to make sure I understand you.
I would like a cite for the general rule you propose that a will’s validity is determined by the law of the domicile of the testator.
