Inserting Photos in Wills to Clarify Specific Gifts

“Inserting Photos in Wills to Clarify Specific Gifts,” that is the subject of today’s ACTEC Trust and Estate talk.

Transcript/Show Notes

This is Travis Hayes, ACTEC Fellow from Naples, Florida.

Clients pass along important family heirlooms as part of their estate plan. These specific gifts of tangible personal property require precise descriptions so that a person unfamiliar with the property may correctly identify what is being gifted. A photo of the personal property seems like an obvious solution to depicting the item, but is that enough? Is there legislation or case law to help guide planners?

ACTEC Fellow Professor Gerry Beyer of Lubbock, Texas is with us today to discuss best practices for including photos in a will.

Problem Definition and Example

Travis Hayes: So to start us off, Professor Beyer, what problem is inserting photos and wills designed to solve?

Gerry Beyer: Travis, clients as you said will often have large lists of personal property that they want to go to certain beneficiaries like jewelry, pieces of furniture, paintings, and other heirlooms. Now, these items need to be described in such detail that a total stranger- a personal representative, a judge, or maybe a jury- could ascertain what property is being referenced. And this can involve very detailed descriptions that can be lengthy and awkward.

I recently did a pro bono case where the wife had about 20 pieces of jewelry, each for a different relative and each with different alternates of the beneficiary predeceased. And writing out all those descriptions was really tedious. I know some of you have states where you have tangible personal property documents so you could leave it up to the client to write something like that up. But Texas, like other states, doesn’t recognize that, and the only way to do it is to put a provision in the will.

Legal Authority and Example

Travis Hayes: Is there any authority validating this technique?

Gerry Beyer: I couldn’t locate any reported case where a photo was used in a will but photos are widely accepted in other legal documents. You see them in pleadings, appellate briefs, and court opinions.

I did find a case dating back to 1882 where courts utilized photographs when taken together with the written document to determine the testator’s wishes. It was a Georgia case of Garrett v. Wheeless. Considering the totality of the circumstances, the court held that where a will was found alongside a picture of the only purported legatee, that was enough to remove any uncertainty about the testator’s identification of that legatee. So it really isn’t such a huge step to believe that courts will approve of the insertion of photographs in wills of specific testamentary gifts of personal property.

Potential Legal Challenges

I don’t see any reason why it wouldn’t work, but the potential roadblock to the successful use of photos in wills is the definition of “will” that you find in legislation across the country. Almost all of the relevant code provisions require a will to be “in writing.” Whether it’s physical writing or an electronic one.

So what is a writing? Now if you look at the generic definition in Black’s Law Dictionary, it says it is any intentional recording of “words”- emphasizing the word “words”- in a visual form, whether in handwriting, printing, typewriting, or any other tangible form that may be viewed or heard with or without mechanical aids. This includes hard copy documents, electronic documents on computer media, audio and videotapes, emails, and any other media on which words can be recorded.

Interpretation of Writing

As I pointed out when reading that definition, this definition places emphasis on the notion that a writing requires the use and recording of words. Would a photograph be considered words? Well, a beneficiary of a specific gift with a clear photo in the will, but with an insufficient written description, would argue yes. While a residual beneficiary would claim the gift fails for indefiniteness and that the picture is not “in writing” and cannot be considered.

But personally, I think regardless of this issue the photo could still be considered extrinsic evidence which would be admissible to clarify an ambiguous provision in a will. I think there is no harm in using the technique. You have a lot to gain and the worst that can happen is the court would ignore the photo.

Best Practice Recommendations

Travis Hayes: If an attorney decides to use this technique, what are some best practices the attorney should use?

Gerry Beyer: Travis, that’s a great question. I have about eight best practice suggestions for you.

Best Practice 1: Quality Picture

Number one, you have to have a quality picture, so you need a quality camera. Now in the past, that was a big problem, but now most smartphones have basic digital cameras that produce an image that is sufficiently good for use in a will.

Best Practice 2: Proper Lighting

Second, you’ll need an area where the photograph is taken that is well lighted, well-lit because you don’t want unnecessary shadows or glares that could diminish the quality of the image and make identification of similar items difficult.

Best Practice 3: Solid Background

Then, number three, you want a solid background beneath and behind the item because that will make the item show up better. You want to be sure that the color of the item doesn’t match the color of the background or what’s underneath because you don’t want the components or details to be in conflict.

Best Practice 4: Different Angles

Number four, take photographs from different angles if that’s appropriate. This can be especially helpful when dealing with an estate containing multiple items of a similar nature. For example, what if the testator is giving away many different gold rings? Well, you could have a picture, a wide shot of the ring, and then a close-up of the serial number engraved on the band or the words that are engraved or the exact jewels that are there and that would become very useful in identification.

Best Practice 5: Measuring Metric

Our next one, number five, would be to include some sort of measuring metric in the photo, maybe a ruler, for example, because that will help demonstrate the size of the item. Just be sure the metric is correctly scaled and that in the photograph you can read the units of measurement.

Best Practice 6: Organization and Backup

Number six, you want to carefully organize and save the photos. You want some sort of numbering or labeling system so you can correlate the photographs with the provisions in the will. And of course, I’d recommend you save a backup of the photos and put them in your client’s file as well.

Best Practice 7: Print in Color

Number seven, print the will in color. A color printer will definitely help identification of that gift. Yes, I know that many of the scanners that will be used when the will is filed will only scan in black and white, but the original will would be in color and therefore that would become a very important aid in identifying the item.

Best Practice 8: Copyright Warning

Eight is a warning. You’ve got to be careful about copyright infringement because some items. If you take a picture of them, it could be a picture or an image that’s copyrighted. Once the will is probated, it’s on the public record, and that could be deemed a publication, and you don’t want to subject the estate to liability for copyright infringement.

Conclusion

Those are the eight things of the things I think would be best practices if you decide to use this technique.

To wrap up, I do think you should consider including photos of specific gifts when identifying them by words alone would be problematic. Doing so, I think, would be very helpful in carrying out your client’s intent and avoiding protracted disputes. As I mentioned earlier, there is no harm because the worst that can happen is the court won’t pay attention to it.

Thank you, Professor Beyer, for educating us on the inclusion of photos and wills to identify specific gifts of tangible personal property.

 

Additional Information

• American Bar Association – The Viability of Inserting Descriptive Photos in Wills: A Picture Is Worth a Thousand Words (article by Professor Gerry W. Beyer and Scout Blosser)
• The Complexity of Dealing with a Holographic eWill (Jun 2023)
• Horton v. Jones Case on Electronic Wills (Mar 2019)

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