The Montana Supreme Court upholds the decision of the Twenty-Second Judicial District Court of Carbon County in a case concerning the validity of a video recording intended as an enforceable last will and testament. In RE: the ESTATE OF: Jesse L. Beck, Deceased (Mont. No. DA 24-0033, October 29, 2024).
This case involves the brother of a deceased man attempting to submit a phone video the decedent sent him making a testamentary statement as the decedent’s will.
After Jesse Beck died, his only child, Alexia Beck, filed a petition for informal appointment as personal representative in intestacy to administer his estate, which was ordered on July 26, 2022.
In October 2023, Jason Beck, Jesse’s brother, filed a petition for formal proceedings to probate a video recording Jesse sent to him as an enforceable will and for appointment as personal representative of Jesse’s estate and removal of Ms. Beck as personal representative. Jason asserted that he should be the sole devisee.
Four days before his death, Jesse sent Jason a phone video of himself, in which he stated:
“I, Jesse Beck, give all my possessions, if anything happens to me whatsoever, I give all my possessions, everything, to Jason Beck, my brother. Christina Fontineau does not get one thing, not one thing.”
Other than the delivery of the video to Jason’s cell phone, limited information about the video is in the record. No witnesses appear in the recording, Jesse’s words were not written down, and Jesse’s signature was not found in correlation to his video. Ms. Fontineau is a nonrelative and is not entitled to any part of Jesse’s estate under the laws of intestacy.
Jason argued that his brother’s video should be accepted as his intended will under § 72-2-523, MCA. This statute is titled “writings intended as wills,” and permits probate, in certain circumstances, of “a document or writing added upon a document,” even if not executed in compliance with other statutory requirements. The district court ruled the statute “by its own unambiguous terms does not allow a video to be considered as a document or writing upon a document that was intended as a will.”
Additionally, the district court distinguished the video from electronic versions of writings, such as electronic notes, because those could satisfy the definition of a writing or document by being printed out and, thereby, become indistinguishable from any other writing.
The district court held that “a video recording of a decedent, even if it records him or her expressing testamentary intent, does not qualify as a ‘document or writing upon a document’ as used in § 72-2-523, MCA” and denied Jason’s petition to probate Jesse’s video recording. Jason appealed the decision.
Jason argues that the phrase “document or writing” in § 72-2-523, MCA is in contrast to the “in writing” requirement for execution of wills under § 72-2-522, MCA and “establishes the legislature’s intent to allow nonwritten documents, such as video and audio recordings, to also qualify as intended wills.”
Ms. Beck counters Jason’s argument by stating that Jason is omitting critical language from § 72-2-523, MCA, which neither contrasts § 72-2-522, MCA, nor provides authorization of nonwritten wills. She further argues that though “document” is not expressly defined in the Uniform Probate Code (UPC), § 72-2-522, MCA, provides that a holographic will that fails to satisfy will execution requirements can still be valid “if the signature and material portions of the document are in the testator’s handwriting.” This, she asserts, enforces the premise that a “document” must be capable of both being written upon and signed.
Ms. Beck also argues that language regarding usage of video or audio recordings as valid testamentary instruments is “notably absent” from both of the statutes in question as well as the official comments to the statutes.
Her interpretation of the statutes is more accurate given that she is interpreting the statutes in whole rather than removing specific terms from the context in which the legislature used them.
In weighing the case, the Court looked to the statute’s plain language. Its structure and context clearly imply that a “document,” as used in § 72-2-523, MCA, is a physical paper or possibly digital file on which words are produced and can ultimately be signed and witnessed. This clearly does not apply to video or audio recordings.
The Court concludes that the district court correctly denied Jason’s petition.
Subscribe to the Knowledge Bank.
