ACTEC Trust & Estate Talk — Inserting Photos in Wills to Clarify Specific Gifts

Date: October 29, 2024
Host: Travis Hayes, ACTEC Fellow
Guest Expert: Professor Jerry Byer, ACTEC Fellow

Episode Overview

This episode centers on whether and how estate planners can include photographs in wills to better identify specific tangible gifts—such as jewelry, artwork, or heirlooms—and thus minimize disputes and confusion. With host Travis Hayes, Professor Jerry Byer, an ACTEC Fellow from Lubbock, Texas, discusses legal authority, practical hurdles, potential risks, and best practice guidelines for using photographs as aids in testamentary documents. The discussion is practical, engaging, and tailor-made for professionals seeking to clarify gifts of personal property.

Key Discussion Points & Insights

1. The Problem Photographs Aim to Address

• Precise identification is crucial. Family heirlooms and specific items listed in estate plans require precise, comprehensible descriptions to avoid ambiguity for executors, courts, or even juries.
• Tedious descriptions: Detailed written itemizations can be cumbersome, especially for clients with many similar gifts.
  • [01:15] Professor Byer recalls:

    “I recently did a pro bono case where the wife had about 20 pieces of jewelry, each for a different relative… Writing out all those descriptions was really tedious.”

2. Is There Legal Authority for Photos in Wills?

• No direct precedent, but analogous case law exists.

• Photos are accepted widely as evidence elsewhere in legal practice, but rarely (if ever) have courts addressed their use inside a will.

• Georgia case as an example: In Garrett vs. Wheelis (1882), a photo found with a will helped clarify the intended legatee.

• Potential legal roadblock: Statutes usually insist that a will must be “in writing,” with legal definitions focusing on “words.” This could leave photos in a grey area.

  • [03:55] Prof. Byer:

    “Would a photograph be considered words?... A beneficiary of a specific gift with a clear photo in the will ... would argue yes, while a residual beneficiary would claim the gift fails for indefiniteness.”

• Extrinsic evidence fallback: Even if a court finds photos aren’t “writing,” they may still be admitted as evidence to clarify ambiguous will provisions.

  • [04:52] Prof. Byer:

    “I think regardless of this issue, the photo could still be considered extrinsic evidence… And so I think there is no harm in using the technique.”

3. Best Practices for Including Photos in Wills (Practical Guidance)

For attorneys considering this technique, Professor Byer recommends the following:

[05:22]
1. Use High-Quality Cameras:

• Modern smartphones typically suffice.

2. Ensure Good Lighting:

• Well-lit photos reduce shadows and glare, aiding identification.

3. Select a Solid Background:

• Avoid backgrounds that blend with or obscure the item.

4. Photograph from Multiple Angles:

• Especially for multiple similar items—include close-ups on engravings, serial numbers, or distinctive marks.

5. Include a Measurement Metric:

• Use a ruler or scale for size comparison, making sure the measurement is readable.

6. Organize and Label Photos Carefully:

• Number or label photos to correspond with will provisions. Keep organized backups for client files.

7. Print in Color:

• Helps distinguish items more accurately, even if scanned originals end up in black-and-white.

8. Consider Copyright Risks:

• Some photographed items may be copyrighted. Wills become part of the public record, and unauthorized publication could create liability.

• [07:18] Memorable summary:

  “So to wrap up, I really do think you should consider including photos of specific gifts when identifying them by words alone would be problematic. ... There really is no harm because the worst that can happen is the court won’t pay attention to [the photograph].”

Notable Quotes & Memorable Moments

• On tedium of detailed written descriptions:

  • [01:15] Prof. Byer:

    “Writing out all those descriptions was really tedious...”

• On the legal definition of “writing”:

  • [03:48] Prof. Byer:

    “This definition places emphasis on the notion that a writing requires the use and recording of words. Would a photograph be considered words?”

• On value versus risk:

  • [04:52] Prof. Byer:

    “The worst that can happen is the court would ignore the photo.”

• On best practice summary:

  • [07:44] Prof. Byer:

    “Including photos… would be very helpful in carrying out your client's intent and avoiding protracted disputes.”

Important Timestamps

| Timestamp | Segment | |-----------|--------------------------------------------------| | 00:37–01:15 | Introduction to the problem: specificity of property gifts | | 01:15–02:24 | The difficulties of detailed item descriptions | | 02:27–05:16 | Legal authority, case law, and statutory analysis | | 05:22–08:47 | Eight best practices for including photos in wills | | 08:47 | Wrap-up and thanks |

Flow and Tone

The episode is conversational, insightful, and highly practical, offering a mix of legal theory, real-world anecdotes, and step-by-step best practices. Professor Byer is candid and pragmatic, urging cautious optimism—encouraging attorneys to use photos when helpful but to understand their uncertain legal standing.

In summary:
Including photos in wills may not be universally sanctioned as legal “writing,” but they can greatly reduce ambiguity and disputes over specific tangible gifts—with minimal downside if done thoughtfully and with attention to best practices.