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Tablet Will: Don’t Try This at Home (or in Illinois)

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In what appears to be a case of first impression (possibly anywhere), an Ohio probate court judge recently ruled that a Will created by a dying man on a Samsung Galaxy tablet computer could be admitted to probate in Ohio as a valid Will.  Javier Castro, who had refused a blood transfusion due to religious beliefs, had a discussion with his brothers at his hospital bedside about making a Will to leave them his property.  Since they didn’t have any paper or pencil available (not sarcasm, this is in the judge’s decision) they decided to make the Will on a tablet computer belonging to Javier’s brother, Miguel.  The brothers witnessed Javier ‘sign’ the Will (apparently with a ‘stylus pen’), and after his death printed out a copy of the Will and submitted it for probate.

The Ohio probate judge found that, despite Ohio’s lack of specific law on electronic wills, this will could be admitted as a signed and witnessed written document.  The judge may have taken into consideration that Javier’s parents would have inherited without the Will and they had indicated that they wanted to honor the terms of the tablet will.  The judge also admonished that he believes the Ohio state legislature should update their Wills statute to address electronic wills.

Some states are fairly lenient in what they will accept as a valid Will.  Some allow handwritten (holographic) wills without witnesses, some allow oral Wills and some have statutes forgiving certain noncompliance with state statute (as Ohio apparently does).

However, Illinois is a strict compliance state.  If execution of the Illinois Will does not meet the form proscribed by Illinois statute, it cannot be admitted to probate.  Illinois law requires that a decedent’s Will must be:

    • in a writing (oral or video Wills are not allowed), which is…
    • signed by the testator (maker), or by some person at the testator’s direction and in the testator’s presence,…
    • while in the presence of at least 2 credible witnesses, and which is…
    • attested by the 2 credible witnesses, who must also physically sign the Will while in the presence of each other and the testator.

Also, as I previously discussed, Illinois courts have also held that, with limited exception, only an original Will, not a copy, can be admitted to probate.

So would this Will have been admitted in an Illinois probate court?  There is no direct precedent, but I have serious doubts.

    • Is the later printed Will from the tablet a writing?
    • Is it an original writing?
    • Was it actually ‘signed’ (with a ‘stylus pen’) by the testator?
    • Did the brothers even actually sign the tablet as well?

Seems doubtful to me.  Of course, the current Illinois statute dates back to 1990, so it’s a good bet that the legislature did not contemplate a tablet will.  Hopefully this issue will be considered proactively in the near future one way or another.

Under Illinois law, there’s another problem with the execution of this Will.  The witnesses on the Will were Javier’s brothers who were also the beneficiaries.  When all of the witnesses are also beneficiaries under the Will, then any gift to the witness/beneficiary is void as to that amount which is over and above what the beneficiary would have received if there had been no Will.  Consequently, beneficiaries (and their spouses) under a Will should never sign as witnesses.

Bottom line: keep the pen and paper handy, and make sure that your Illinois Will is properly and formally drafted (on old-fashioned paper), signed and witnessed.

Read more on our website about Illinois Wills.