Primacy of Paratextual Wills

While only Indiana has a statute specifically detailing the legal status of videotaped wills, ¹⁶⁵ the potential impact of such wills on the probate process is beginning to be realized in courts around the country, ¹⁶⁶ as well as in legal literature. ¹⁶⁷ Their popularity among the general public has increased to the point where the press can carry the message that "in the video biz the [electronic will] is the last curtain call." ¹⁶⁸ Compared to a written will, the paratextual version is better suited to provide proof of compliance with all state legal formalities, such as testamentary capacity, testamentary intent, and the presence or absence of undue influence or fraud.

Where there are both written and paratextual counterparts of the same will, it is again necessary to ask: Which is the primary text? Here, too, our ingrained print ways resist the new technology. The Uniform Probate Code requires that wills be in written and signed, ¹⁶⁹ and state statutes invariably insist on such a written form except in highly unusual circumstances. These print­age requirements raise the issue of whether a "writing" or a "signature," within the meaning of the Code, can include a properly authenticated paratext. ¹⁷⁰

Even if the electronically recorded will were not accorded independent legal status, it could still serve as extrinsic evidence to clarify ambiguities in the written document, to show absence of capacity, or to demonstrate the presence of fraud or undue influence. ¹⁷¹ For example, "videotape forever freezes the testator's mental state at the time of execution and enables the court to visually perceive testamentary capacity rather than puzzle over a will written years before." ¹⁷² Given the omnipresence of paratexts and their ability to reveal electronically recorded reality, we can expect prospective beneficiaries to introduce paratexts to support their challenges to written wills. Even without statutes that specifically address the role of electronically recorded wills, courts may soon become so dependent on them that, functionally speaking, the primacy of videotaped wills will be established. Here, the future lies with Indiana.