By: Melanie A Bigos
The tradition of disposing of assets through the execution of a will has endured for centuries – the practice dates back to the ancient civilizations of Greece and Rome. While this custom has sustained colossal societal changes, technological advancements in digital communication allowed probate to evolve drastically to better accommodate the modern testator. Especially in light of the COVID-19 global pandemic, an impetus for a modernized method of estate planning emerged. However, technology moves fast, but the law effectuates at a much slower pace. The progression towards the digitization of wills raised concerns within the legal community; experts fear that a legislative shift allowing electronic wills will cause issues in ensuring security and enforceability for a testator.
In July 2019, the Uniform Law Commission approved the Electronic Wills Act, which recognizes the legality of electronic wills, and some states – namely, Arizona, Florida, Indiana, and Nevada, as of 2020 – have already introduced e-signing for wills. These provisions appear timely, considering the massive shift towards remote and virtual interactions increasing as part of social distancing efforts to combat the coronavirus pandemic. Each state maintains a statute of wills which sets different protocols, yet most have a standardized set of required formalities: the will must be in the form of a writing, the will must bear the testator’s signature, and the will must be signed by two or more witnesses who attest to the testator’s signature. The major question being posed now is whether citizens can meet such requirements with an electronically executed will. While no state specifies that wills must be on paper, and some specifically define “writing” as inclusive of electronic communications, courts often face difficulties in establishing the validity of digital wills, also known as probating them, because they recognize the “superficial impermanence” of writing on a screen. Nevertheless, while many courts refuse to recognize electronic notes as meeting the requisite formal standards, such wills are oftentimes still admitted to probate.
In a world revolutionized by digital technology, it appears inevitable that the law would negotiate a space for electronic wills within the traditional practices of probate. Relaxation of the present requirements would likely promote freedom of testation by increasing accessibility of estate planning resources. The ubiquity of electronic devices allows for the process of testation to become more inexpensive and convenient, thus encouraging more people to consider drafting a will. There is a great interest in demystifying the will-making process, as the number of adult Americans that have a will has decreased by almost 25% in the past three years. Furthermore, there are disparities in knowledge or resources about estate planning among different communities. Results of a 2020 survey demonstrated that 6.3% of respondents said they have not yet created a will because they are unaware of how to begin. Within this group, people of Hispanic descent are more than twice as likely as Caucasians to lack knowledge about how to create a will. The recent emergence of several online estate-planning start-ups, such as Cake, Gentreo, and Trust & Will, who offer cheap and accessible means of creating a legally binding will, suggest a future where access to estate planning resources are more universal.
While appealing, the digitization of wills for the sake of convenience and accessibility comes with several caveats. First, estate-planning firms, who often do not employ licensed attorneys, operate with the objective of commercial success. There is a potential for such firms to exploit vulnerable populations, such as the elderly, by subjecting them to extreme transaction fees. Second, encryption can only go so far – in creating a digital will, a testator is running the risk of the document being tampered with or hacked. Furthermore, legalizing fully digital wills is likely to be only marginally advantageous in practice, since most of the current will drafting process already utilizes electronic means; technically only the finalization process requires in-person execution.
In light of these conflicting benefits and detriments associated with validating electronic wills, it seems that the most viable option in the present moment is finding a compromise. While it is crucial for legal professionals to adapt to the inevitable modernization of their practice and to encourage testators to seek help with their estate planning, courts and legislators reasonably aim to impose restrictions so as to maintain a certain level of clarity. For this reason, it is sensible to continue to discourage fully digital wills except for in emergency or exigent circumstances. The unprecedented circumstances created by society’s attempt to adapt to a global pandemic may have breathed new life into the argument for proponents of digitalization, much to the dismay of advocates of the probate practices that have resisted change for so long. The widespread effects of COVID-19 have certainly demonstrated a demand for accessible estate planning, but the potential harmful repercussions of fully legalizing digital wills may outweigh the benefits. Although it is apparent that tradition bends to technology, the potential for abuse that may accompany the normalization of electronic wills proves that there is some value in protecting the customary practices of estate planning.
Student Bio: Melanie A. Bigos is a second-year law student at Suffolk University Law School and serves as a Staff Member on the Journal of High Technology Law. Melanie holds a Bachelor of Arts in Psychology from Boston College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
