Video Will? Don’t Do It
As long as Arizona requires a will to be signed, with the signer and witnesses physically together, video wills won’t work, and “electronic” wills are likely to be more trouble than they’re worth.
In 2022, a Montana man, Jesse Beck, sent a selfie video to his brother, Jason. In the video, Jesse stated, “If anything happens to me whatsoever, I give all my possessions – everything – to Jason Beck, my brother.”
Four days later, Jesse died in an auto accident. His daughter asked the court to appoint her as Jesse’s personal representative “in intestacy” – i.e., without a will. Jason objected and asked the court to probate the video as Jesse’s will.
The court denied Jason’s petition, ruling that Jesse’s video did not meet Montana’s statutory requirements for a valid will. Two years later, the Montana Supreme Court agreed, and the case was reported by The Wall Street Journal.
Reading the Journal article caused us to wonder how many cell phone users here in Arizona might have the same idea as Jesse and pursue a video selfie alternative to the traditional hard-copy will.
Our short advice: Don’t do it.
Why? Because Arizona laws governing the making of a will look a lot like Montana’s. And while a 2019 Arizona law allows people to execute an “electronic will” (see below), its provisions would not allow a video selfie will to survive a legal challenge, nor does it loosen the statutory requirement that the witnesses to the signing of a will must be physically present when the testator (the maker of the will) signs it.
A video recording or digital text or email message that is intended to serve as a will is certainly convenient and perhaps even persuasive (the Montana Supreme Court conceded that Jesse Beck’s video “undoubtedly [expressed] testamentary intent”). But as long as it exists in a purely video or electronic-only state, it can’t be read, signed, and witnessed, and without a witnessed signature, it will not stand up to a legal challenge.
Your Options. The statutorily safe way to express your wishes in a will is to put it in writing. A will that is typewritten, or drafted on a computer and printed, allows for easy signing and witnessing (but beware to strictly follow the witness requirements under Arizona law to create a valid Last Will and Testament).
You might also create a “holographic” will – i.e., a will written in the maker’s own hand. To be valid, it has to be handwritten entirely by the maker. A holographic will does not have to be witnessed or notarized so long as it is entirely in the maker’s own handwriting, but having at least one witness will help it stand up to challenge. Also, the maker should include a statement that they intend for the document to serve as their will.
If Jesse Beck had simply written on a cocktail napkin what he said in his brief video and signed it, Jason might have inherited Jesse’s estate. But Jesse decided to go digital, and his wishes were not honored.
Electronic Will. What the 2019 Arizona law does is allow for digital signatures by the maker of the will and the witnesses (think DocuSign and buying a house). But while that is very 21st Century, there are complications, such as:
- all of the required signers are still required to be in the same place at the same time;
- a digital file that is digitally signed has to be properly created and maintained as an electronic record and stored in the uninterrupted custody of a “qualified custodian” – i.e., not on your laptop; and
- you might not want to move (or die) out of state; at the time of this writing, most states don’t permit the making of electronic wills, and a few expressly prohibit them.