Traditionally, the creation of a valid will, in California and elsewhere, required strict adherence to certain formalities. Estate law has been tepidly moving away from requiring compliance with those formalities, with a goal of prioritizing the intent of the person creating the will (the “Testator”). Nine states have gone so far as to enact laws that authorize electronic wills.
While our Legislature has considered similar laws, California is not currently among the states that permit the use or recognition of electronic wills. Following the passing of actress Anne Heche, a California judge was asked to consider whether an email the actress had sent to her ex-partner, James Tupper, qualified as a will despite California’s lack of legislation validating electronic wills.
Evolution of California Law Regarding Will Execution
Until recently, to create a valid will in California, the Testator had to comply with strict statutory formalities. The Testator could create a formal will, which requires the Testator’s signature as well as those of two witnesses acknowledging that they witnessed the execution of the will and understood the document was the Testator’s will. The Testator also could create a “holographic” will, which does not require witnesses but does require that the will be written in the Testator’s handwriting and signed by the Testator. Even the slightest defect in the execution would result in the will being declared invalid.
However, in 1990, the Uniform Law Commission adopted a “harmless error” provision. On July 1, 2008, the California Legislature adopted a harmless error doctrine by amending Probate Code section 6110. Under the revised language, if a will is not executed by the witnesses with the required formalities, it nonetheless will be deemed valid if the proponent establishes by clear and convincing evidence that, at the time the Testator signed the document, he or she intended the document to be his or her will.
Near Adoption of Electronic wills
In recent years, several states have introduced or enacted legislation to address the electronic creation and execution of wills. The specifics vary from state to state.
In Arizona, for example, a person may electronically sign a will, but there is a requirement that there be two witnesses who are physically present with the Testator at the time of signing, and the two witnesses must also electronically sign the document.
In Utah, by contrast, the Testator and two witnesses may all sign the document electronically, and the parties need only be “electronically present,” meaning they can be in different physical locations so long as they are “communicating in real time as if the individuals were physically present in the same location.”
In 2019-2020, the California Legislature took up the issue of electronic wills via Assembly Bill 1667. AB 1667 would have authorized electronic wills. In response to opposition, the bill was narrowed to defer the authorization of such wills by directing the California Law Revision Commission to evaluate the issue and recommend a statutory scheme. In the end, the opponents were able to stop AB 1667. As a result, an electronic will can be valid only if a California court finds that the harmless error doctrine applies.
Anne Heche’s Alleged will
Anne Heche died on August 11, 2022 in Los Angeles following a car accident. She was 53 years old. She had risen to fame in the 1980s by appearing on the soap opera Another World, and later starred in movies such as Donnie Brasco and Wag the Dog.
According to the initial petition filed by Anne’s son, Homer Laffoon, Anne died without a will. As a result, Homer is the individual with priority to administer Anne’s estate in probate court for the benefit of Anne’s two children, Homer (age 20) and Atlas (age 13).
After Homer filed the initial petition, actor James Tupper, Anne’s ex-partner and the father of Atlas, filed an objection. James asked the Los Angeles County Superior Court to recognize an email that Anne sent to James in 2011 as the actress’s will and to appoint James as executor of her estate. The email expressed Anne’s wish that all of her assets go to the control of James to be used to raise her two children, with each child to receive his half upon reaching the age of 25. (Reported by US Magazine).
Since California does not formally recognize electronic wills, James’s attorneys argued that the email should be recognized as Anne’s will under the harmless error rule.
As reported by People Magazine, Homer’s lawyers filed a response which argues that the email did not come close enough to the statutory requirements for the discrepancies to be considered “harmless error.” The will was not in Anne’s handwriting and it was unsigned and unwitnessed.
In an outcome that surprises few, at a hearing on November 30, 2022, the Los Angeles County Superior Court declined to apply the harmless error doctrine and rejected James’s petition in favor of that filed by Homer, who at young age of 20 has been appointed administrator of his mother’s estate.
Don’t procrastinate with your estate planning! Until our Legislature embraces electronic wills, California residents can’t rely on emails or text messages to create valid wills. Instead, they should take care to print them out and have them signed before two witnesses in conformity with the anachronistic but still important statutory requirements.