Can You Make a Will in a Video?

Jesse Beck had no will at age 45. However, he did make a video in which he stated he wanted his brother Jason to inherit everything if he died. Four days after making the video, Jesse was struck and killed by a car. Not surprisingly, estate litigation ensued after his death. The Montana Supreme Court ruled that video doesn’t count as a will, according to The Wall Street Journal article, “Yes to Text Messages, No to Video: What Counts as a Will.”

Despite the article’s title, you definitely don’t want to create a testamentary document using a text. A lack of understanding about what is acceptable as a will often leaves heirs with legal disputes and huge headaches. Beck’s brother won’t inherit his estate. It will go to his daughter. He would have done far better to have a will and an estate plan.

The gold standard is a paper will prepared by an estate planning attorney who knows the state’s laws and is signed with ink—known as a “wet signature.” While some states recognize holographic wills written and signed by hand on paper, doing so puts your wishes at risk. It is important to note, Florida DOES NOT recognize holographic wills, and EVERY document in Florida with a testamentary intent is required to be in writing signed at the end by the testator and signed by two witnesses.

Nearly half of all Americans don’t have a will. Some states recognize electronic wills, and legislation is pending in a few other states. However, the electronic will must be text and not audio or video. There are growing concerns about using artificial intelligence and deepfakes to create fraudulent electronic wills or alter electronic wills without the testator or heirs being able to identify the changes.

When someone dies without a will, known as intestacy, their state’s laws determine who inherits their estate. If Jesse wanted his brother to inherit his estate, he should have had a will created with an experienced estate attorney. While his own estate may have been modest, there is a wrongful death case pending against the vehicle involved in Jesse’s fatal accident. Alexia’s inheritance may be in the millions.

Different state courts have ruled differently regarding non-paper wills. An appellate court in Michigan accepted a digital will created with a note in an Evernote app on the decedent’s mobile phone.

Montana doesn’t have an electronic or e-will statute. However, writing may be treated as valid if there is clear and convincing proof the decedent wished it to be a valid will. In a case different from the Beck matter, a Montana court rejected using a text message as a will.

The bottom line: unless you intend to subject your family to a lot of legal wrangling and spend a lot of time in court, it’s best to meet with an experienced estate planning attorney and have a will prepared. You’ll also want to speak with the attorney about related documents, including Power of Attorney, Healthcare Proxy, Living Will and, if applicable, Trusts.

Reference: The Wall Street Journal (Dec. 14, 2024) “Yes to Text Messages, No to Video: What Counts as a Will”