By Douglas Noreen
An Australian court recently decided a case wherein an unsent text message was used as a will for a man who subsequently died. His widow, who had been disinherited in the “text message will,” contested the will, arguing that because he did not send the text message, the deceased did not make it effective. The judge ruled otherwise, stating that given the circumstances, the court believed it was intended to be the last will and testament of the man.
Could the same thing happen in North Carolina? In a word, no. North Carolina has very strict guidelines for executing a proper will. A will in North Carolina must be signed, and it must be attested by at least two competent witnesses. Therefore, electronic communications such as emails or text messages would not be able to serve as a will.
There is one exception to this procedure – the holographic will. A holographic will is a will that is handwritten by the person executing it. To be a valid holographic will, the will must be (1) written entirely in the handwriting of the person executing the will, (2) signed by the person, (3) found among the person’s valuable or important papers after his or her death, and (4) must not have any witnesses.
A will that satisfies all of these characteristics will be a valid handwritten will. The mistake most commonly made in a holographic will is the document not being entirely in the person’s handwriting. There can be nothing on the page which is typed or in anyone else’s handwriting. In today’s our practice we sometimes see typed “wills” which are printed and signed by the person with no attesting witnesses. This is not a valid holographic will since it is not entirely in the person’s handwriting. The other common mistake made is having only one witness sign the handwritten will, which invalidates the will. Of course, having two attesting witnesses would make the will valid as a non-holographic will.
One last note is that a witness to a will cannot take anything from the estate. If your children or spouse are in your will, they should not sign as a witness to it!
So rest assured, a sent or unsent text message will not be your valid will in North Carolina. However, this also means it is important to take the proper steps to validly execute a will to have your instructions followed.