CAN MY TEXT MESSAGES BE A WILL?

A recent case in Australia answered the question of whether a text message can create a will.  The Court ruled that a decedent’s text messages, some of which were unsent, could constitute a will.  http://www.telegraph.co.uk/news/2017/10/11/dead-mans-unsent-text-message-accepted-will/.   Think about how much confusion (not to mention fraud) this could create if this was the law in Arizona. 

Courts would be called upon to discern between fake text messages and real ones.  Experts would be called on to decipher whether the text messages were created before the death or after.   Courts would need to decide whether the text messages were supposed to revoke existing estate plans or just amend an existing estate plan.  Courts would need to decide whether the text was just a note for a possible future will or an actual will.  The list can go on and on.  Thankfully, this is not the law in Arizona.

To create a will in Arizona is simple.  It requires doing one of the two options below:  

Holographic Will:  A testator, over the age of 18, can create a holographic will so long as he/she writes the will, in his/her own hand, and it is signed by the testator.  There is no need for the will to be witnessed or notarized. 

Standard Will: A standard will is a bit more complicated.  These types of wills must have the following:

A.    It must be in writing;

B.    Signed by the testator or signed by someone else in his/her conscious presence for the testator; and

C.    Witnessed by two witnesses who witnessed the testator’s signature on the will.

If you have not complied with each requirement, you have not created a will in Arizona. You will die “intestate,” meaning without a will.  Please note that under the Standard Will, I recommend that a testator have his/her signature notarized. 

Despite the simplicity of creating a will in Arizona, I recommend that you hire an attorney to create your will or estate plan.  It is one thing to create a will that the courts will review and attempt to decipher.  It is yet another, and much harder, to create a will that actually conveys your property without confusion and without unnecessary litigation.