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The Estate of Anne Heche & Electronic Wills

By Kate Halligan Feb. 17, 2023

In the Estate of Anne Heche, the Los Angeles County Superior Court was presented with the question of whether it would consider an email a will despite California’s lack of legislation validating an electronic will. Ultimately, the Court declined to recognize an email as an electronic will under the “Harmless Error” doctrine.

Recognition of Electronic Wills

While several states have enacted laws that recognize electronic wills, California is not one of them. In California, to create a valid will, the person creating the will, known as the Testator, must comply with statutory formalities. For example, a valid will requires that the Testator sign the will and have two witnesses acknowledge that they have witnessed the execution of the will and understood that the document served as the Testator’s will. California also recognizes holographic wills. Essentially, a holographic will is a handwritten will by the testator. A holographic will must be in the Testator’s handwriting and signed by the Testator but does not require witnesses. Deviation from the statutory formalities of execution will often render the will invalid.

However, strict adherence to these formalities is slowly being relaxed. In relaxing the strict standards, courts are emphasizing the importance of the intent of the individual creating the will rather than the form of the document. The states that recognize electronic wills see the rise in use of technology to accomplish legal objectives and are finding ways to build an electronic medium into estate law.

The California Legislature examined the issue of electronic wills through Assembly Bill 1667 in 2019-2020. The original version of Assembly Bill 1667 was narrowed significantly, and the California Law Revision Commission was directed to evaluate the merits of electronic wills and whether the Legislature should adopt a statutory scheme that recognizes electronic wills. If the Commission determined that adopting a statutory scheme to recognize electronic wills was prudent and did not pose unnecessary risks of fraud, the study shall recommend a specific legislative proposal for a comprehensive statutory scheme to recognize electronic wills in California. Ultimately, Assembly Bill 1667 advanced. In doing so, an electronic will is valid only if the Court finds that the harmless error doctrine applies. The harmless error doctrine states that if a harmless, or small, error is made in the execution of a will, the will can still be considered valid and error excused.

Risks with Electronic Wills

There are substantial risks and obstacles with electronic wills. First, elderly citizens are at greater risk for abuses such as undue influence and coercion. The risk of abuse increases with electronic documents for a number of reasons, including the accessibility of the document and lack of knowledge about electronic documents in elderly citizens. Additionally, while it may be easier and more convenient for elderly citizens to execute a will at their residence, potential perpetrators of undue influence and coercion can more easily access the elder in their home. Because of the legal importance of a will, California seeks to ensure protection for its residents before it enacts legislation on electronic wills.

Additionally, the accessibility of an electronic will is an obstacle for family members and survivors of the decedent. It may be difficult to locate an electronic will amongst files on a device, and a device, or the will itself, may be password protected.

Further, metadata poses a problem. For example, the document may reflect a specific date, but the metadata may reveal that the will was modified after the date on the document. However, the metadata may not reveal what the change to the document was. Therefore, without further evidence, there is no way of knowing whether the change was made by the Testator and is valid or was made by another person and is invalid.

Finally, preservation of the electronic will is an issue. Electronic wills may be lost if improperly stored or an individual updates or upgrades their technology.

Rejection of an Electronic Will in the Estate of Anne Heche

On August 11, 2022, actress Anne Heche passed away following a car accident. Heche was famous for roles such as Vicky Hudson and Marley Love in the soap opera Another World (1964) and movies such as Donnie Brasco (1997).

The initial petition for probate was filed by Heche’s son, Homer Laffoon, and stated that she died without a will. After Laffoon filed the initial petition, Heche’s ex-partner and actor, James Tupper, filed an objection. Tupper asked the Los Angeles County Superior Court to recognize an email Heche had sent to Tupper in 2011. Tupper requested the email be admitted as Heche’s will and that he be appointed as executor of her estate. As reported by US Magazine, the email allegedly stated:  

“My wishes are that all of my assets go to the control of Mr. James Tupper to be used to raise my children and then given to the children. They will be divided equally among our children, currently Homer Heche Laffoon and Atlas Heche Tupper, and their portion given to each when they are the age of 25. When the last child turns 25 any house or other properties owned may be sold and the money divided equally among our children.”

Tupper’s attorney argued that the email should be recognized under the “Harmless Error” rule because California does not recognize electronic wills.

In response, Laffoon’s attorney argued that the email is not close enough to the statutory requirements for the discrepancies to be considered “Harmless Error.” Specifically, the will was not in Heche’s handwriting, was unsigned, and was not witnessed.

At a hearing on November 30, 2022, the probate court declined to apply the “Harmless Error” doctrine, rejected Tupper’s petition, and appointed Laffoon as the administrator of the estate.

Overall, the Estate of Anne Heche is a reminder to adhere to the statutory requirements when creating a will. Compliance with statutory requirements ensures that your intent as the Testator is recognized and followed during administration of your estate.

If you have questions about creating a will or trust, please call the estate planning attorneys in our Granite Bay office for a free consultation at 916-960-1000 or via the contact form below.