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Michelle Chapman

Associate Solicitor, Irwin Mitchell

Quotation Marks
A ‘holographic will’ is a will and testament which has been entirely handwritten and signed by the will-maker (the testator)

E-Will: Actor Anne Heche’s estate and purported email will

E-Will: Actor Anne Heche’s estate and purported email will


Michelle Chapman considers formats of wills in the digital era

The late actress and Emmy Awards winner Anne Heche sadly passed away in August 2022, following an accident whereby her car drove into a LA residence and resulted in a fire. Ms Heche was later taken off life support after being declared legally dead. Ms Heche was just 53 years of age and died without leaving a will. Heche is best known for her roles in 90s movies such as Donnie Brasco, Volcano and I Know What You Did Last Summer. She died single and leaving two sons: 20-yearold Homer Heche Laffoon and 13-year-old Atlas Heche Tupper. Pursuant to Californian intestate succession law, if an individual dies unmarried but leaving surviving children, then those children are entitled to inherit the deceased’s estate equally.

As such, Laffoon applied to take control of Heche’s estate in order to distribute her assets between Tupper and himself. However, Heche’s former partner, James Tupper (Mr Tupper), Atlas Heche Tupper’s father, objected to this application, claiming Heche had in fact appointed him as the sole administrator and to take control over her assets on behalf of the children. This was following an email allegedly sent by Heche in 2011 purportedly stating: “FYI, in case I die tomorrow and anyone asks… my wishes are that all of my assets go to the control of Mr James Tupper to be used to raise my 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.” Mr Tupper referred to this email as being Heche’s last will. Mr Tupper argued that the purported will demonstrated Heche’s intention for him to be appointed as the sole administrator and to manage the assets in Heche’s estate on the children’s behalf until they reached the age of 25. This was challenged by Laffoon’s legal representatives, who asserted that the email was not legally binding, stating that the “the email does not qualify as either a holographic will or formal witnessed will”. There were also further allegations made by Mr Tupper, claiming mismanagement of Heche’s assets and that Laffoon had apparently been ‘hostile’ towards Mr Tupper and Atlas Heche Tupper.

What is a 'holographic will'?

A ‘holographic will’ is a will and testament which has been entirely handwritten and signed by the will-maker (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 while 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 upon as a record of a deceased’s intentions.

Would a holographic will be valid in England & 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) 43 TLR 71, the testator chose to write his will on an eggshell, 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 s9 of the Wills Act 1837, which 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 document, it is unlikely to be appropriately signed and witnessed. It would therefore be very difficult to argue that an email could 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 and 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. Notwithstanding the above, English and Welsh litigators anticipate an influx of disputes surrounding holographic and/or virtual wills in years to come following the covid-19 pandemic, whereby social distancing rules meant that lawyers had difficulty meeting clients face to face, either to take instructions or to deal with the signing formalities of a will. As such, the government was forced to introduce subsection 2(9) of the Wills Act 1837, as supported by the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, to include “wills made on or after 31 January 2020 and on or before 31 January 2022, ‘presence’ includes presence by means of videoconference or other visual transmission”. This effectively meant witnesses to a testator’s signature on a will could be present virtually, for example by way of video link, during the specified period.

However, many lay people struggled to understand the rules surrounding virtual will signing, for example, the fact that the testator and the witnesses still needed to physically sign a hard copy of the will as opposed to an electronic copy. There is also thought to be a higher risk of undue influence and coercion surrounding the virtual witnessing of wills, with perpetrators hiding behind computer screens to conceal any wrongdoing. Lastly, it should be noted the legislation was an emergency measure to ensure individuals could create wills during the pandemic and does not apply after 31 January 2022.

Ms Heche's estate

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 Mr Tupper sought to rely upon an email purportedly sent by Heche, as opposed to a handwritten document, it seemed unlikely that this would have satisfied the test to constitute a valid will under Californian law – and indeed, judgment was passed down in December 2022 appointing Laffoon as the general administrator to his mother’s estate. In a statement to People Magazine, Laffoon’s attorney stated: “We believe the court reached the correct result this morning, both legally and equitably, and are glad to have this phase of the process behind us. With Mr Tupper’s allegations and objections now resolved, we are hopeful the administration of the estate can proceed without unnecessary complication.” 

Michelle Chapman is an associate solicitor in the will, trust and estate disputes team at Irwin Mitchell LLP: