Smart phones and computers have revolutionized how we do everything and invaded every area of our lives, except for court rooms, in many cases.

What Is a Valid Will?

Currently, a valid Will in California requires, under California Probate Code Section 6110, that there is a written document, that is signed by the 1) testator, i.e. the decedent; 2) In the testator’s name by some other person in the testator’s presence and by the testator’s direction; or 3) By a conservator pursuant to a court order to make a will under Section 2580. It must be witnessed by two persons that are not receiving under the Will. Additionally, the testator must have capacity to make their Will.

If a Will does not meet the requirements of a Will under Section 6110 then Section 6111 provides for holographic will. A holographic will must have the signature and the material provisions are in the handwriting of the testator. For more about holographic wills then read my article about it.

Are Text Messages Allowed as Evidence in Court?

The Court’s main goal is to determine the intent of the testator so if you do not have a valid Will or a holographic Will then the Court can allow in outside evidence to prove the intent of the testator. Under Section 6111.5, ʺextrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.ʺ Thus, a text could be allowed in as extrinsic evidence as an intent of existing written will if it is ambiguous but can a Will only be a text on a phone?

Text messages are treated like other forms of documentary evidence, meaning that in order for a text message to be admitted as evidence, there must be a proper “foundation” laid for its admission into evidence. In other words, the person trying to get the text messages into evidence must be able to show the text messages were on a phone owned by the other party, that the other party wrote the text messages, and that the text messages were received by another party.

What Does All of It Mean?

Currently, there is no California Probate Code that allows a text message to be considered a valid Will and it does not quite meet the requirements of a holographic will. Thus, if a text message is to be considered a Will on its own with no other written Will of the testator. It must be submitted to the Court in order to have it evaluated as intent of the testator.  If you have any questions please contact us.

Coastal Pacific Law attorneys are experienced in estate planning, and can help with your trust administration, probate administration, wills and trusts. To schedule a complimentary consultation, call (619)786-6563, or fill out a Contact Request Form.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

Photo by Pineapple Supply Co.

 

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