# Can an unwitnessed will be valid? **URL:** \ **Category:** Factual Questions\ **Created:** [June 21, 2007, 1:23pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846 "2007-06-21T13:23:47Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [June 21, 2007, 1:23pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/1 "2007-06-21T13:23:47Z")
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? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [June 21, 2007, 1:33pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/2 "2007-06-21T13:33:53Z")
[QUOTE=Quartz] 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? [/QUOTE] In the US, at least in some jurisdictions, and in Scotland you could. It’s called a [holographic will.](http://en.wikipedia.org/wiki/Holographic_will) I’m pretty sure a dictaphone or tape recorder wouldn’t do. It looks like it must be entirely handwritten and signed, and probably dated. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 21, 2007, 1:36pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/3 "2007-06-21T13:36:02Z")
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. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [June 21, 2007, 11:29pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/4 "2007-06-21T23:29:54Z")
Could it not be valid as a dying declaration? ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [June 21, 2007, 11:39pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/5 "2007-06-21T23:39:02Z")
[QUOTE=Quartz] Could it not be valid as a dying declaration? [/QUOTE] “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. ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [June 22, 2007, 12:22am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/6 "2007-06-22T00:22:23Z")
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. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 22, 2007, 12:34am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/7 "2007-06-22T00:34:54Z")
[QUOTE=brazil84] …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. [/QUOTE] Wouldn’t you just use the law of where you lived? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 22, 2007, 12:44am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/8 "2007-06-22T00:44:12Z")
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](http://www.plea.org/yas/theplea/v24n4/v24n4.pdf). > [@](#): > > \*\*Where there’s a will, there’s a way… \*\* > > But actually, in the case of a Saskatchewan farmer, the reverse is closer to the truth. Back on June 8th, 1948 Cecil George Harris was working his fields when he became caught underneath his tractor. His left leg was pinned under one of the tractor’s wheels and he was unable to free himself. Fearing the worst, Cecil used a small knife to carve out his last will and testament on the fender of the tractor. It read simply “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.” > > Although he was eventually found and freed by neighbors, he died of his injuries two days later. And although he never mentioned having made his will as described, the writing on the fender was discovered. Once it was established that the handwriting was that of the deceased Cecil George Harris, the will was admitted into court as a valid holograph (handwritten) will. > > In order to keep the will on file, the fender was cut from the tractor and kept at the Kerrobert Courthouse until 1996. The original fender is now housed at the University of Saskatchewan, College of Law. > > This will complied with the legal requirements for a holograph will - it was entirely in the testator’s handwriting and signed by him. The court went to great lengths to see that his last wishes regarding his property were respected. The fender is still on display in the Law Library at the U of Sask. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 22, 2007, 12:47am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/9 "2007-06-22T00:47:13Z")
[QUOTE=alphaboi867] > [@brazil84](#): > > …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. Wouldn’t you just use the law of where you lived? [/QUOTE] 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. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 22, 2007, 1:12am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/10 "2007-06-22T01:12:16Z")
[QUOTE=Northern Piper] 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. [/QUOTE] But in neither case does the law of the location where the will was written factor in? 😕 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 22, 2007, 3:51am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/11 "2007-06-22T03:51:26Z")
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. ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [June 22, 2007, 4:04am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/12 "2007-06-22T04:04:30Z")
[QUOTE=Northern Piper] 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](http://www.plea.org/yas/theplea/v24n4/v24n4.pdf). The fender is still on display in the Law Library at the U of Sask. [/QUOTE] Did he even need to go to the trouble? I thought that a spouse would inherit everything even in the absence of a will. ---
**Author:** ![Cunctator](https://avatars.discourse-cdn.com/v4/letter/c/43a26b/32.png) [@Cunctator](https://boards.straightdope.com/u/Cunctator)\ **Post date:** [June 22, 2007, 4:10am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/13 "2007-06-22T04:10:48Z")
[QUOTE=Dewey Finn] Did he even need to go to the trouble? I thought that a spouse would inherit everything even in the absence of a will. [/QUOTE] That would depend upon the intestacy laws in the jurisdiction. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [June 22, 2007, 10:32am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/14 "2007-06-22T10:32:28Z")
[QUOTE=Northern Piper] 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. [/QUOTE] The question is whose law applies to the question of whether the will is valid. This purports to be South Dakota Law: > [@](#): > > A written will is valid if executed or if its execution complies with the law at the time of execution of the jurisdiction where the will is executed, or of the law of the jurisdiction where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national. [http://www.helplinelaw.com/law/usa-south%20dakota/others/wills-probate.php](http://www.helplinelaw.com/law/usa-south%20dakota/others/wills-probate.php) ---
**Author:** ![missouri65](https://avatars.discourse-cdn.com/v4/letter/m/74df32/32.png) [@missouri65](https://boards.straightdope.com/u/missouri65)\ **Post date:** [June 22, 2007, 6:51pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/15 "2007-06-22T18:51:07Z")
[QUOTE=brazil84] The question is whose law applies to the question of whether the will is valid. [/QUOTE] 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. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [June 22, 2007, 7:02pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/16 "2007-06-22T19:02:27Z")
[QUOTE=missouri65] It’s still the law of the domicile or location of the real property. [/quote] Cite? > [@](#): > > 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. Statutes usually have force of law, no? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [June 22, 2007, 7:34pm UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/17 "2007-06-22T19:34:57Z")
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. ---
**Author:** ![missouri65](https://avatars.discourse-cdn.com/v4/letter/m/74df32/32.png) [@missouri65](https://boards.straightdope.com/u/missouri65)\ **Post date:** [June 23, 2007, 12:47am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/18 "2007-06-23T00:47:54Z")
[QUOTE=brazil84] Cite? Statutes usually have force of law, no? [/QUOTE] 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 23, 2007, 1:43am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/19 "2007-06-23T01:43:01Z")
[QUOTE=Elendil’s Heir] 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. [/QUOTE] 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: > [@](#): > > 2107.03 Method of making will. > > Except oral wills, every last will and testament shall be in writing, but may be handwritten or typewritten. Such will shall be signed at the end by the party making it, or by some other person in such party’s presence and at his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature. > > Effective Date: 10-01-1953 [http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)](http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)))/mileg.aspx?page=getObject&objectName=mcl-700-2506 and oral: > [@](#): > > 2107.60 Oral will. > > An oral will, made in the last sickness, shall be valid in respect to personal estate if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words. Such witnesses must prove that the testator was of sound mind and memory, not under restraint, and that he called upon some person present at the time the testamentary words were spoken to bear testimony to such disposition as his will. > > No oral will shall be admitted to record unless it is offered for probate within six months after the death of the testator. > **[Chapter 2107 - Ohio Revised Code | Ohio Laws](https://codes.ohio.gov/ohio-revised-code/chapter-2107)** 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: > [@](#): > > 700.2503 Writings intended as wills. > > Sec. 2503. > > Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following: > > (a) The decedent’s will. > > (b) A partial or complete revocation of the decedent’s will. > > (c) An addition to or an alteration of the decedent’s will. > > (d) A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the decedent’s will. [http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)](http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)))/mileg.aspx?page=getObject&objectName=mcl-700-2503 and also specifically recognizes holographic wills: > [@](#): > > 700.2502 Execution; witnessed wills; holographic wills. > > Sec. 2502. > > (1) Except as provided in subsection (2) and in sections 2503, 2506, and 2513, a will is valid only if it is all of the following: > > (a) In writing. > > (b) Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction. > > (c) Signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision (b) or the testator’s acknowledgment of that signature or acknowledgment of the will. > > (2) A will that does not comply with subsection (1) is valid as a holographic will, whether or not witnessed, if it is dated, and if the testator’s signature and the document’s material portions are in the testator’s handwriting. > > (3) Intent that the document constitutes a testator’s will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator’s handwriting. [http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)](http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)))/mileg.aspx?page=getObject&objectName=mcl-700-2502 Ohio’s statutes were adopted in 1953; Michigan updated and liberalized it’s law of wills in 1998. Here is Ohio’s jurisdiction provision: > [@](#): > > A will shall be admitted to probate: > > (A) In the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state; > > (B) In any county of this state where any real or personal property of such testator is located if, at the time of his death, he was not domiciled in this state, and provided that such will has not previously been admitted to probate in this state or in the state of such testator’s domicile; > > (C) In the county of this state in which a probate court rendered a judgment declaring that the will was valid and where the will was filed with the probate court. > > For the purpose of this section, intangible personal property is located in the place where the instrument evidencing a debt, obligation, stock, or chose in action is located or if there is no such instrument where the debtor resides. > > Effective Date: 01-01-1979 > **[Section 2107.11 - Ohio Revised Code | Ohio Laws](https://codes.ohio.gov/ohio-revised-code/section-2107.11)** > [@](#): > > 700.1302 Exclusive subject matter jurisdiction. > > Sec. 1302. > > The court has exclusive legal and equitable jurisdiction of all of the following: > > (a) A matter that relates to the settlement of a deceased individual’s estate, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered [http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)](http://www.legislature.mi.gov/(S(rvto4w45ov44a045cxlb2p20)))/mileg.aspx?page=getObject&objectName=mcl-700-1302 Michigan also has a borrowing statute like South Dakota: > [@](#): > > 700.2506 Choice of law as to execution. > > Sec. 2506. > > A written will is valid if executed in compliance with section 2502 or 2503, with the law at the time of execution of the place where the will is executed, or with the law of the place where, at the time of execution or at the time of death, the testator is domiciled, has a place of abode, or is a national. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [June 23, 2007, 10:36am UTC](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846/20 "2007-06-23T10:36:08Z")
[QUOTE=missouri65] 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. [/quote] 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’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. 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. [Next page](https://boards.straightdope.com/t/can-an-unwitnessed-will-be-valid/408846.md?page=2)