Inserting Photos in Wills to Clarify Specific Gifts

Summary

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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

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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.

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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].”

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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.”

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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 |

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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.

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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.

Transcript

[A]

Inserting photos and wills to clarify specific gifts that is the subject of today's ACTEC Trust and Estate Talk.

[B]

Welcome to ACTEC Trust and Estate Talk from the American College of Trust and Estate Council, a professional society of peer elected trust and estate lawyers in the United States and around the globe. This series offers professionals best practice advice, insights and commentary on subjects that affect our profession and clients. And now our ACTEC Fellow host with today's topic.

[A]

This is Travis Hayes, ACTECH 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 Jerry Byer of Lubbock, Texas is with us today to discuss best practices for including photos in a will. So to start us off, Professor Byer, what problem is inserting photos and wills designed to solve?

[C]

All right, 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. And 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, don't recognize that, and the only way to do it is to put a provision in the will.

[A]

Is there any authority validating this technique?

[C]

Well, 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, court opinions. I did find a case dating way back to 1882 where courts have utilized photographs when taken together with the written document to determine the testator's wishes. It was a Georgia case of Garrett vs. Wheelis, and considering the totality of the circumstances, the court held that where a will was found alongside of a picture of the only purported legatee that 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. I don't see any reason why it wouldn't work. But the potential roadblock to 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 a 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 intentional recording of words. Emphasize 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. But as I pointed out when I was 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. And so 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 the photo.

[A]

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

[C]

Travis, that's a great question. I have about eight best practice suggestions for you. 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. Second, you 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. Then, number three, you want a solid background beneath and behind the item, because that will make the item show up better. And 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. 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. 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 of the item. Just be sure the metric is correctly scaled and that in the photograph you can read the units of measurement. 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. 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. An 8 is sort of a warning. Got to be careful about copyright infringement because some items, if you take a picture of them, that could be a picture or an image that's copyrighted and 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. So those are eight of the things I think would be best practices if you decide to use this technique. 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. Doing so, I think would be very helpful in carrying out your client's intent and avoiding protracted disputes. And as I mentioned earlier, there really is no harm because the worst that can happen is the court won't pay attention to.

[A]

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

[B]

Thank you for listening to this episode of ACTEC Trust and Estate Talk, the podcast series about wealth planning matters from the American College of Trust and Estate Council. To find an Actec lawyer near you. Visit actec.org Please subscribe to this series and leave us a rating or a review.