On using today’s technology…

Almost as soon as The Legal Genealogist pushed “publish” on yesterday’s blog post, in came The Question.

“The Question” in capital letters because it’s the one that should have been anticipated and answered… and wasn’t.

The blog post was about designating a beneficiary for our DNA test results and any remaining sample, and the particularly urgent need to take care of that chore in these unsettled times. It mentioned the problem of trying to get a beneficiary designation form notarized in this time of social distancing, and suggested handwriting every word of the form rather than using a preprinted form to give the designation the best chance of being recognized as the legally-binding wishes of the test taker.1

video for DNA

The question, from reader Bob S.: “What about recording our wishes in a video format? Wouldn’t that work as well or better?”

Well, yes… and no.

Yes, in the sense that it certainly can make it crystal clear that (a) it’s the test taker — and not somebody else — who’s making the personal choice as to what he or she wants done with his or her DNA test sample and results and (b) the test taker is doing so willingly and without any coercion. There won’t be any issue of identity or handwriting, and a good video will make it clear the test taker is doing this of his or her own free will.

No, in the sense that — as usual — the law hasn’t caught up with technology,2 and a video recording isn’t (at least yet) a substitute for a writing when it comes to something that legally is part of our estate planning.3

Here’s the hitch: in general, wills and other documents affecting estates have to be in writing, and made with certain explicit formalities, in order to be considered valid.

There are two basic exceptions to this general rule. In some jurisdictions, a holographic will — one written entirely by hand by the person making the will4 — may be honored. In others, in very specific circumstances usually limited to military personnel in time of war or those in imminent peril of death, the courts may accept a nuncupative will — essentially an oral declaration in the presence of witnesses.5

None of which will apply everywhere and to everyone right now.

So… would I recommend doing a video?

With the usual caveat that this is not legal advice… Sure.

It can’t possibly hurt, and it might help.


Cite/link to this post: Judy G. Russell, “A follow-up note…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 6 Apr 2020).

SOURCES

  1. See Judy G. Russell, “DNA in a time of crisis,” The Legal Genealogist, posted 5 Apr 2020 (https://www.legalgenealogist.com/blog : accessed 6 Apr 2020).
  2. See Dan DeNicuolo, “The Future of Electronic Wills,” Bifocal: A Journal of the ABA Commission on Law and Aging, 15 Oct 2018, American Bar Association (https://www.americanbar.org/ : accessed 6 Apr 2020).
  3. See generally Mary Randolph, “Can You Make a Video Will?,” Nolo.com (https://www.nolo.com/ : accessed 6 Apr 2020).
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 576, “holograph.”
  5. Ibid., 835, “nuncupative will.” See also ibid., 774, “military testament.”
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