If a will is drafted on a mobile phone, is it valid? Not likely say US estate advisers…

digital afterlife or legacy on phone

“Michal Zacharzewski, SXC”

A recent court ruling in Queensland, Australia determined that a will that had been drafted on an iPhone was valid. This prompted IT Law Firm IdeaLaw to ask, could wills drafted on social media and in other informal scenarios be deemed as legally valid in the future?*

While it has been suggested as a possibility in Australia, this feature attracted some interesting feedback from legal and estate planning representatives in the US who indicated that this would depend on the state. However, in mentioned cases it was considered unlikely – at least, for the foreseeable future.

“For the US, that will depend on each state’s laws,” replied Jeff Dundon, Director, Gift Planning at UC Foundation. “It would not be considered a holographic will in Ohio and does not meet the requirements of written signed by testator and at least two independent witnesses. A statutory change could make it possible but I can foresee a lot of issues and contests for a ‘smart phone’ will.”

Reeve Chudd, Partner, Ervin, Cohen & Jessup added, “Not in California. We only have two types of Wills — (a) signed by the testator and witnessed by at least two independent witnesses, and (b) entirely in the testator’s handwriting which is signed and dated (holographic Will). Video Wills don’t work either.”

Dave Towers, a Gift Planning Officer at Victoria Hospital Foundation in Canada had the final say however, referring to a recent anniversary of a will drafted in extraordinary circumstances over 60 years ago. He pointed to a farmer’s last wishes that he etched onto the fender of a tractor after it fell on him during an accident. These were later accepted by a court in Saskatchewan.

A judge at the time ordered the fender portion of the tractor to be cut off and it has been displayed under a piece of glass in the Saskatchewan Law College Library ever since.

*IdeaLaw’s full analysis: “Can a document on a smartphone be a valid will?”

Legacy Tip #2: Register online accounts with personal email address & keep contact details updated

protect_legacy_email_social_online_accountsFor personal online services such as for banking and financial, registrations to social media accounts such as Facebook and LinkedIn or other entertainment/lifestyle memberships where digital assets may be stored (i.e. your Apple account with iPhoto or iCloud), always use a personal email address for the sign-up process as opposed to a company email address or someone else’s contact details.

It’s a practical and basic rule but it means that you keep control over the sign in process as well as management of the account and the data it contains.

Why?

If a person leaves a place of employment and their work email is associated with their online services, they may have access issues later.

When someone leaves a company suddenly (i.e. in the case of redundancy), it’s likely that the business will cancel the email address if not immediately, then very quickly for security reasons.

In the event that an employee is working through a notice period before leaving the company, there’s still a chance that updating social media and online registration details with a personal email address may be forgotten with the distraction of other handover tasks.

This generally means that when that person leaves the company, they won’t have access to the email account for any correspondence from online subscription services but more importantly, they are unable to reset usernames and passwords for online services that rely on email, as well as a response to the emails they send, to identify an account holder.

Next of kin will have issues accessing a deceased person’s accounts if they are associated with a work email address. 

Even the most sympathetic companies will not (or in any event are extremely unlikely) to allow next of kin to access the deceased’s email account for privacy and security reasons.

Whether or not next of kin or close family and/or friends have access to the deceased’s usernames and passwords, if the accounts they are trying to enter are associated with a work email, they still won’t be able to access those services that rely on email and responses from the account holder’s email to confirm access rights.

Using an online service set up with another person’s details can lead to access issues and complications down the line.

Say a couple shares a household service which has only been set up in one person’s name. Should the person that registered for the subscription die, their partner may no longer be able to access the account. This is for the reason cited before — that digital services often verify access rights through email — but similarly, functions that we often take for granted these days such as ‘remember this password’ on devices means that the person who survived the deceased may not know relevant passwords either.

For shared household services, it’s wise to set these up using an email account that everyone within the household can access and document relevant passwords so that if the person who registered the account(s) leaves, it does not automatically result in discontinuation of the service.

It’s also worth bearing in mind that when someone registers for an online account, they are the one to accept terms and conditions as well as responsibility for it — including associated fees — even if the service is predominantly used by someone else.

As an example, if a son or daughter bought a mobile phone account or online media subscription for a parent but signed up for it under their own name, they would be liable for ongoing payments in the event their parent died during the fixed term contract period.

What happens to someone’s mobile phone account when they die? (AU)

mobile_phone_account_close_someone_dies_death

Credit: Lizerixt

Away For a Bit asked major Australian mobile operators about their policies on how next of kin can close accounts on behalf of someone who has died. Read what mobile operator policies are in the UK. No operators were able to state categorically what costs a family member or friend would need to cover from the deceased’s estate when finalising bills or if they required a handset to be returned in the event that one was included in the account plan. Vodafone did however state that the company does not generally expect the return of the handset or settlement of bills.

Telstra perhaps offered the most comprehensive overview of how their account closure worked in these circumstances, followed by Vodafone. Optus was pretty vague in offering details but did provide a customer number for the bereaved to call in such circumstances.

Here’s a line up of the major Australian mobile operators and what they outlined as their account closing policies for someone who has died.

[Read more…]

If a will is drafted on a mobile phone, is it valid?

digital afterlife or legacy on phone

Credit: Michal Zacharzewski, SXC

According to this recent blog post by IdeaLaw, the answer is “yes, it can be!” There has been a case in Queensland already in which the court ruled that a will drafted on an iPhone was valid.

Three elements need to be satisfied for a court to find an informal will valid.

1) That it is a document
2) That the document states the deceased’s intentions for their estate after their death
3) That the deceased intended the document to be a will

Which leads to an important question.

Are there or could there be wills drafted on social networking sites or within an email inbox that could be declared valid in the future?

IdeaLaw proposes that this could be so if these above elements can be demonstrated. Read their blog post for a legal perspective on the Queensland example and potential consequences in layman’s terms.

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