I know you can do ‘em, but apparently they’re not legally binding. Why is that? If you have two people there who agree you’re competent, it should work. I am not at all a lawyer, even a little bit.
Because the law regarding wills goes back centuries, and this is a new innovation.
There is nothing stopping a legislature from passing a statute that makes a video will valid. The only impediment is political desire.
Nevertheless, videos can be used as evidence to prove up a written will (I.e. show that you were not impaired when you made it)
There are jurisdictions that allow digital or online wills which is a newer yet innovation.
For a video will, I wouldn’t want a lawyer testifying as to their client’s mentality. I would want them to testify that they were there when it was recorded and that what is being shown matches up with what the audience saw.
Actually, can we get a cite that they’re not legally binding? As I understand it, any document that clearly expresses the intentions of the deceased is a valid will (though of course, unconventional wills can take a lot longer to process). Legally, I’m pretty sure that a video would be considered a kind of document.
Here is one but it deals with Illinois law. As these things often go this may vary by state and I am not going to dig up all 50-state laws on this.
In Illinois a video will is not legally binding but may serve other purposes. Other states may have different rules.
Though a video may give your family comfort after your death, it will not be considered legally binding on its own. Illinois law requires that a will be written, and it must be signed in the presence of at least two witnesses. This means that you will likely still need a written document that has been kept in a safe place in addition to your video will. Of course, the video could still be used as evidence to prove that you were of sound mind at the time of creating the will, should any of your family members contest the will’s validity. Still, it is important that you speak with your estate planning attorney to determine what (if any) legal value a video will lend to your situation. - SOURCE
My question is, in the absence of anything else, does a probate court just completely ignore the existence of the video and proceed as if there was no expression of the wishes of the recently deceased?
In Illinois, dying with only a video will appears to be the same as dying without one at all. The probate court must follow a very detailed algorithm at that point, and grits* are defined by statute.
*That was autocorrected from “heirs” but I’m keeping it in honor of my cousin, Vinny.
Good question. Ironically, it seems to be it would be a lot easier to forge a paper will and testament claiming the deceased to have said something, than it would be to fake-forge a video of the deceased.
That’s why there has to be two witnesses who are not beneficiaries.
Of course, all wills, however presented, are open to challenge. But that requires that there is someone ready and willing to mount a challenge and that the estate is worth the hassle.
Most states don’t recognize any form of holographic will (that is, one not signed before witnesses or a notary seal or both depending on the jurisdiction). The “why” is almost always going to be “because their legislatures have decided that certain formalities make a will more reliable.”
Wills are an area that is usually governed by special statutes that stipulate the formal requirements for a valid will, and these statutes were often written long ago. In English law, for instance, the matter is governed by the Wills Act 1837, which requires a will to be in writing and signed by the testator plus two witnesses. Many continental European legal systems are based on the “holographic” will, which means it must be written entirely in the testator’s own handwriting; a typed will signed at the end will not suffice. Such special statutes, where they exist, override the general rule that any expression of an intention to be legally bound can be enforceable.
I wonder too, how does the legal system treat video submissions and evidence in general? Would someone pull the file 20 years from now and say “oh, this is on a VHS-C cassette, anyone have a player?” Recordable DVD’s are alleged to have a limited lifespan. At least paper is permanent, except for those wet-process copiers from back in the 60’s.
The idea that a will has to be entirely handwritten by the willmaker herself seems rather ridiculous, if only for the fact that a lot of people making will have physical limitations and can’t write something out.
I’d presume that a legally-appointed person could scribe for them? If the person was disabled similarly to Stephen Hawking.
There are exceptions for that, but they are applied narrowly. As far as Germany (the jurisdiction for which I can speak best) is concerned, the majority of wills are, in fact, handwritten, and courts will strike them down if they’re not handwritten and no exception applies which would allow for a different form. This does not cause major problems in practice, since the rule is widely known, so people comply with it.
Today I learned the term “nuncupative will”.
In Canada, you can get away with scratching your will into the side of a tractor.
I learned the term ‘holographic will’ although I was disappointed that it just means handwritten, rather the will being an actual holograph like in the Star Trek holodeck.
Presumably, when all this goes into a file for future perusal, at least one could include a photograph of the tractor fender. Not sure how to file away video for future reference.
My dad’s will in NJ was the opposite. Because it was handwritten, (not typed by a lawyer’s office?), they had to get testimony by at least one of the witnesses before the judge would approve it.
I was similarly disappointed when I first heard the term, but it is a literal translation - “holo” means whole, “graph-“ means writing, so it is literally an entirely written document.