Video Wills

You might wonder whether you can make a video recording of yourself stating who gets your stuff and use the video as your Will. Well, as Jesse Beck’s family found out, that probably doesn’t work. At least not yet.

In Estate of Beck, 557 P.3d 1255 (Mont. 2024), Jesse made a recording on July 11, 2022 where he said he was leaving everything to his brother, Jason Beck. Jesse sent the recording to Jason. Four days later, Jesse was killed when another driver, a Sheriff’s Deputy, struck and killed Jesse and another person. Jesse’s daughter filed a petition to administer Jesse’s estate. After she was appointed as administrator, she filed a wrongful death action.

A few months later, Jason filed a petition to probate the video as Jesse’s Will. The trial court examined Jason’s claim, but ultimately ruled that the video was not a Will. On appeal, the Montana Supreme Court agreed.

The video was not signed by Jesse and was not signed by witnesses. No witnesses appeared in the video so, even if an unsigned electronic record, could be considered, there was no proof it was witnessed. The Court rejected Jason’s argument that the Uniform Electronic Transaction Act or the Uniform Electronic Wills Act allowed the Court to treat a video as a valid Will.

Georgia and most other States would probably reach the same result. For example, O.C.G.A. § 53-4-20 provides that a “will shall be in writing and shall be signed by the testator or by some other individual in the testator’s presence and at the testator’s express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will.” It also provides that a will “shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness’s presence and at that witness’s direction.” Codicils must be executed the same way. A video, without more, cannot satisfy this requirement.

Let’s change the facts a bit and ask this question: Could someone execute a written Will that incorporates a video by reference? Maybe. Possibly. Consider the case of Swain v. Lee, 287 Ga. 825 (2010). There Elouise Harley Collins composed an un-witnessed letter in 1999, leaving everything to her goddaughter, Lydia Swain. “On April 12, 2005, Collins filled in a blank on a form “Last Will and Testament” naming Swain as the executrix of her estate. Although Collins signed this form before three witnesses, the remaining pages on this will form were left blank, with no disposition of any property being referenced on the form.” After Collins died, Swain filed both documents together, arguing that the 2005 document was a valid will and that the 1999 letter served as instructions.

Bobby Eugene Lee, one of Collins’ cousins, filed a caveat to Swain’s petition. He argued that the documents could not be construed together and did not create a valid Will. The probate court, siding with Lee, found the documents filed by Swain “lacked the requisites of a Will or a codicil under Georgia law, and found that Collins died intestate.” Swain appealed to Superior Court where that Court also agreed with Lee and granted a motion for judgment on the pleadings.

On appeal to the Georgia Supreme Court, the case was reversed. Although the documents considered separately would not be a valid Will, they could be considered together. “Indeed, “[t]o determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. (Emphasis supplied.) OCGA § 53-4-3. In this regard, a will need not be written on one continuous sheet of paper, [nor need the separate papers that constitute a will] necessarily be tied and fastened together with tape and a waxen or other seal.” Jones v. Habersham, 63 Ga. 146, 157 (1879). Indeed, there is no known rule as to any precise manner in which [the will] papers shall be bound or attached together, or requiring a will to be written all on one sheet.”

Although not ruling that Swain’s documents created a valid Will, the Court found that summary judgment wasn’t appropriate because a jury could find that the “relevant documents, and the manner in which Swain claims that they were presented, [when] considered together,” created a valid will.

This leaves open the question of whether a Will can incorporate something else by reference. Certainly they do when a pour over Will leaves everything to a trust. The unanswered question from Swain is whether a video qualifies as something that can be incorporated by reference or whether it must be reduced to writing.

Since few people want to be involved in litigation (and pay lawyers), the safest course for now is to execute a traditional, written Will that is executed in conformance with the statute.