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?
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
This case illustrates well that some of the principles of the law of domicile, like the doctrine of revival, are antiquated and out of touch with modern reality with its widespread immigration and mobility.
As a young, healthy parent, you may believe that having a Will is the last thing on a long priority list. However, while a Will is vital for everyone, those with children should be particularly mindful of the primary importance of having a Will.
At common-law, where a property is purchased with one person's money and title is put in the name of another, there is a presumption that the title holder holds title in trust for the person who contributed the money.
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