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Can an email be a valid Will? - The estate of actress Anne Heche and her purported email Will

27 October 2022

Anne Heche, who sadly passed away in August 2022 at just 53, did not leave a Will. Can an email allegedly sent by Heche in 2011 represent a valid Will? Michelle Chapman, Wills, Trust and Estate disputes Lawyer at Irwin Mitchell, proposes her analysis.

Late actress and Emmy Awards winner Anne Heche, who sadly passed away in August 2022 at just 53 years of age did not leave a Will. Heche, best known for her roles in 90’s movies such as Donnie Brasco, Volcano and I Know What You Did Last Summer had two sons: Homer Laffoon, (20 years old) and Atlas Heche Tupper (13 years old).  Laffoon applied to take control of her estate in order to distribute her assets between Atlas and himself. However, Heche’s former partner, James Tupper, claims that he is the sole heir of her estate, following an email allegedly sent by Heche in 2011. Tupper refers to this email as Heche’s last Will.

Tupper argues that the purported Will demonstrates Heche’s intention for Tupper to solely inherit her estate. This has been challenged by Laffoon’s legal representatives who assert that the email is not legally binding, stating that the “the email does not qualify as either a holographic Will or formal witnessed Will”.

 

What is a ‘Holographic Will’?

A ‘holographic Will’ is a Will and testament which has been entirely handwritten and signed by the Will-maker (known as the ‘testator’).

Interestingly there has been a rise in overseas disputes regarding home-made electronic Wills. In 2017, an unsent text found on a deceased man’s phone after he died by suicide was accepted as his last Will in Queensland, Australia. The definition of what might constitute a valid Will differs between jurisdictions, but the overriding objective of most jurisdictions is to carry out the intentions of the deceased whilst providing certainty as to what constitutes a Will. As such, rules surrounding the execution and witnessing of a Will to make it legally valid provide assurances that a purported last will can be relied up on as a record of a deceased’s intentions.

 

Would a holographic will be valid in England and Wales?

In England and Wales, there is no requirement for a Will to be professionally drafted as long as it accords with the legal signing and witnessing formalities. Indeed in the curious case of Hodson v Barnes (1926) the testator chose to write his Will on an egg shell, and the Court found that there was no reason why a Will couldn’t be documented in this way, so long as the legal formalities were complied with.

The legal formalities surrounding the execution of a Will in England and Wales can be found under section 9 of the Wills Act 1837.  This states that a Will must be signed by the testator in the presence of two witnesses who should also each sign the Will in the presence of the testator.  This means that if the signing formalities are not adhered to then the Will is simply not valid no matter how much evidence there is that a deceased intended for it to be their last Will. Given that an email is a document that is unlikely to be appropriately signed and witnessed, it would be very difficult to argue that an email would constitute a valid Will in this jurisdiction.  However it will be interesting to see how evolving technology and the law interact with each other in the future, and whether it might feasibly be possible to develop programming that would allow the legal formalities for Will-signing to be complied with.

Indeed some countries, such as Hong Kong, Australia, and some US states have “dispensing powers” that enable the courts to recognise an informal document as a Will so that the deceased’s wishes are carried out. Generally, to use these powers, the courts require that the deceased must have intended the document to be their Will.

 

And for Heche?...

Turning back to the dispute surrounding Heche’s estate, Section 61110 of the Californian Probate Code states “a Will that does not comply with Section 61110 is valid as a holographic Will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator”. Given that Tupper seeks to rely upon an email purportedly sent by Heche as opposed to a handwritten document, it would seem unlikely that this would satisfy the test to constitute a valid Will under Californian law.  The hearing of this case took place on 11 October 2022 and is awaiting judgment.  It will be noteworthy to see how the Californian courts respond to such a claim.

 

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