Javier Castro knew he was dying – he had refused a life-saving blood transfusion on religious grounds – and talked about making a will when his two brothers visited him in hospital. They had no pen and paper to hand, so wrote out a will on a tablet device, which Castro and the brothers signed on the tablet. An Ohio county probate judge held that the will was valid: under state law, a will must be a written document that is signed and witnessed (Estate of Castro, Lorain County Probate Court, 27 June 2013).
The judge noted that a will carved in stone with a hammer and chisel would also be valid, but that rather misses the point; the law (Canadian and English law, anyway) has long recognised the validity of holograph wills (instruments entirely in the hand of the testator), the famous example being that of the Saskatchewan farmer who scratched a brief but valid will on the fender of his tractor before it crushed him to death (there is no requirement for a holograph will to be witnessed under Saskatchewan law). The real issue is whether an electronic document can meet the writing and attestation requirements necessary for a valid will. While a contract can be formed electronically, electronic documents legislation expressly does not apply to wills, presumably on the grounds that electronic wills could be subject to alteration by third parties (beneficiary with access to granny's laptop adds some zeroes here and removes them elsewhere). Under British Columbia's Wills, Estates and Succession Act (in force in March 2014), a judge will have the discretion to recognise any 'record [defined to include an electronic record], document or writing' as a valid testamentary disposition (s 58). Bets on when the first tweet is admitted to probate?
