In 1977, New York Law Journal featured an article asking if a photostatic reproduction of a testamentary instrument complied with New York’s statutory requirement, that a will must be “in writing.” Forty years later, we are still figuring out digital wills.
What if a will is not on paper, but only a computer file, asks a recent article in the New York Law Journal, “Wills in the Digital Age.”
Only Nevada currently has a statute governing these wills, and the governor of Florida recently vetoed a proposed electronic wills statute. However, some state courts have addressed the issue. For example, the Tennessee Court of Appeals affirmed the admission to probate a will written with a word processing program and signed by both the witnesses and the testator typing their names at the end of the document.
But how is the will executed? How is it stored and how is the integrity of the document assured? How do you revoke an electronic will or admit it to probate? There’s also the issue of electronic signatures—from scanning an image of a signature to encryption.
What happens when the witnesses and the testator aren’t in the same physical space but are connected via the Internet? The problem is that the testator doesn’t know what the witness is viewing.
As far as storing and retrieving the electronic will, some say it will fall under the provisions of the laws governing fiduciary access to digital assets.
There are numerous questions and obstacles to the e-will, and not very many answers. However, with smart contracts and other technology, we will likely get there one day.
A committee has been appointed by The Uniform Laws Commission to draft a uniform electronic wills act. It appears that the age of the electronic will has arrived, but no matter how digital we get, the problems of disposing property after death are not likely to disappear any time soon.
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