Would You Write Your Last Will and Testament on a Napkin?
WHY YOU SHOULD CARE
A will doesn’t have to be on paper to count as vallid.
By Charles Pappas
From the hatmaker who requested that two drums be sewn from his skin and given to a friend to play “Yankee Doodle” on them at Bunker Hill every year on June 17 to the wish of the inventor of the original Pringles tube that he be cremated and his ashes buried in one of his signature containers, last wills and testaments contain more unusual requests than you could shake a probate lawyer at. Sometimes, though, the most unusual thing about a will is not what’s written in it but what it’s written on.
The rich and the famous are rarely at a loss for the appropriate materials to make a will, an act that has commonly extended for long stretches of the calendar to properly disperse filthy lucre and, on occasion, revenge.
For those not in that exalted strata, being ambushed by a force majeure of imminent death has often compelled ad hoc bequests that are more MacGyver than mundane. For example, caught inside the meat grinder of World War I, a British soldier penned a so-called trench will on the back of a photograph of his Yorkshire beloved: “In the event of my death, I leave all my effects and money to this young lady.” The photo was discovered in the soldier’s effects and admitted to probate.
As a rule, farming isn’t as hazardous as trench warfare, but it can result in the kinds of accidents that leave only minutes to pass on one’s worldly goods. Trapped beneath his tractor and bleeding liberally, a farmer in Kerrobert, Canada, whipped out his pocketknife and etched into the tractor fender the words “In case I die in this mess, I leave all to my wife CECIL GEORGE HARRIS.” After he expired, the fender was detached and admitted to the Surrogate’s Court as the decedent’s last will and testament.
Even a close, but not immediately fatal call with the Grim Reaper can be enough to persuade the court of a testator’s last-minute intentions. One day, Philip Langan thought he was having a heart attack at a McDonald’s. The Yorkton, Saskatchewan, man scribbled his will on a napkin, listing the names of his seven living children with instructions to “split my property evenly.” Almost seven months later, Langan died, and two of the seven children presented the makeshift will to the court. The will was ruled legally valid by the Saskatchewan Court of Queen’s Bench.
While the courts admit wills made under certain kinds of duress, they also recognize more whimsical estate planning if the wording is unambiguous. Take the case of Margaret Nothe of Philadelphia. There was nothing remarkable when Nothe wrote “Chop tomatoes, onions and peppers fine … Measure tomatoes when peeled” in a recipe book. What followed those ordinary words, though, was extraordinary because it became her last will and testament: “In case I die before my husband, I leave everything to him.”
During the summer of 1974, Harry Blake of Phoenix visited Chicago, where he stayed with a female acquaintance. After returning home, Blake sent numerous letters to her conveying his gratitude for her cordiality. In the postscript to one of these missives, he wrote: “P.S. You can have my entire estate. s/Harry J. Blake (SAVE THIS).” The friend did exactly as requested —and eventually inherited his entire estate. Blake’s signed, sealed and delivered largesse certainly made an impression — and impressions are sometimes more important than we could ever expect. Beth Baer, who was blind, would agree. Not long before her death, she etched her will with a pen she didn’t realize had run out of ink. Nonetheless, the blank paper was successfully filed for probate in Los Angeles after a handwriting expert was able to make out the words Baer meant to write from the depressions the pen had left on the paper.
Not every unusual substratum used for wills passes muster with the courts. In 1926, Margaret Barnes of Manchester, England, was rifling through her deceased husband’s belongings when she came upon a hollowed-out eggshell. On it was written “17-1925. Mag. Everything I possess. JB.” Since “JB” were her husband’s initials, “Mag” was his nickname for her, and he had routinely carried eggs on his person, the will seemed legitimate. London’s Probate Court rejected it, however, since a previous will left only a share of John’s estate to Margaret, who was his second wife, and the balance to his children from his first marriage. Among other aspects, the court considered the wording too vague — had the eggshell read “To Mag, everything I possess,” the outcome might have been different. For want of a preposition, a (modest) kingdom was lost.
Cases of wills being hastily inscribed on physical objects are becoming increasingly anachronistic. The future more likely holds the prospect of last testaments on our digital devices. Case in point: In 2011, Karter Yu tapped out a will on his iPhone before he killed himself. After the Australian man composed a series of farewell notes, he typed out bequests: “You and [nephew] keep all that I have house and superannuation, put my ashes in the back garden … [wife] will take her stuff only she’s OK gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin … My will.” Yu then typed his name into the electronic document to stand as his legal signature.
While U.S. legislation on electronic wills has been slow to materialize, a few states now allow them — and a reluctance to let go of paper as a medium may be not just futile but also silly.
“It is possible to commit fraud using a paper will,” says Susan Gary, professor emerita at the University of Oregon School of Law and part of a team that drafted the Electronic Wills Act, meant to be used as a template for states looking to enact legislation on it. “[The remote online notarization process] is probably better than paper because it locks the will in a way that paper doesn’t.”
Still, Gary doesn’t expect Instagram or TikTok wills to be admissible anytime soon — not because they’re digital, but because they’re on video. “With oral statements,” she says, “there might be less finality.”
- Charles Pappas, OZY Author Contact Charles Pappas