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Monday, November 26, 2007

The Promise of Electronic Wills

by: Keven DuComb, Associate Editor, MTTLR

Currently only one state, Nevada, has a statutory provision allowing for electronic wills.1 Nevada was probably a little excessive in requiring at least one "authentication characteristic"--which is essentially an electronic biological marker attached to the electronic will--in addition to the traditional will requirements.2 Nevada's strict and costly requirements, coupled with the exclusion of "wills, codicils, or testamentary trusts" from the Electronic Signatures in Global and National Commerce Act (E-SIGN)3 has led academics to avoid much discussion of electronic wills. However, a 2003 decision of the Tennessee Court of Appeals, holding that a computer-generated signature using a stylized font satisfied the signature requirement, has created some slight interest in the future of electronic wills.4

I think the states should enact statutes providing for electronic wills, but that they should provide a way for their citizens to upload the documents onto a secure web database. I believe the use of a secure website would cure most of the problems that could arise if courts were forced to probate any random document purporting testamentary intent found on a decedent’s personal computer. At the same time, this new approach would still create an easier, more cost-efficient method of will creation.

Section 1-102(b) of the Uniform Probate Code states that "[t]he underlying purposes and polices of this Code are: . . . (2) to discover and make effective the intent of a decedent in distribution of his property."5 Generally, this means that courts would like to distribute an estate in accordance with a decedent's wishes, so long as those wishes are clearly stated in a manner that substantially fulfills the requirements of a will.6 The initial aversion to electronic wills seems to be a carry-over from the aversion to audio and video recordings as legitimate forms of will creation.7 However, unlike audio and video recordings, which have always been at odds with the writing requirement, wills created on a computer do satisfy the writing requirement. The problem is that electronic wills are at odds with the signature requirement.

E-SIGN and the various state laws dealing with electronic signatures enable Americans to conduct daily business transactions, renew driver’s licenses, pay taxes, and even declare ourselves organ donors online. So, why does E-SIGN exempt "wills, codicils, or testamentary trusts?"8 Gerry Beyer and Claire Hargrove suggest that there are generally five barriers (technical, social, economic, motivational, and obsolescence) to the acceptance of electronic wills.9 I think the creation of a secure, state-owned, electronic database for wills could go a long way towards breaking down these barriers.

The technical worries stem from Nevada’s stringent "authentication characteristic" requirement, which is too far ahead of the available technology.10 I would argue, along with other commentators,11 that applying E-SIGN to wills and will substitutes is the solution. I feel that paying taxes or becoming an organ donor is right up there with will creation on the importance scale. Neither of the former tasks requires biometric authentication; passwords or pin numbers are sufficient. The judicial remedies available to combat fraud in traditional will contests will still be available for situations where it seems apparent that an interested party stole a password and uploaded a new or altered will. Additionally, many of the other online safeguards employed by banks, such as security question prompts after a user enters their password and email notifications when there is activity on the account, could help reduce fraud.

The economic and motivational barriers are similar in that they are a creation of the narrow view that electronic wills are merely a tool to improve the estate planning attorney’s bottom line.12 I would urge the state governments to take the lead because they could provide a cheap, efficient alternative for lower income citizens to give effect to their final wishes. Plus, once the system is up and running, it might prove to be an invaluable tool to practicing attorneys, who could use the system to "e-file" all sorts of court documents, a practice urged by some commentators.13

Beyer and Hargrove’s concern over the obsolescence barrier is legitimate if we are looking to give effect to every testamentary document found on a decedent’s computer, discs, flash drive, or blackberry.14 However, that is precisely the reason I urge the use of a centralized, secure database. While the documents sit in the electronic vault of the state’s servers, any necessary technology updates can be made to ensure that any document in the "vault" can be accessed at the required time. Adequate back-up procedures would be used, but for those citizens worried about a computer crash resulting in the loss of their will, a state could charge a reasonable fee to print and store a hardcopy of an electronic will. At least one state currently charges a small fee if you would like to file your traditional will at the courthouse.15

If the state governments take the lead to implement the system I have described, then the social barrier should be of no concern because there will be no pressure for the older generation of lawyers and clients to change their ways.16 As I have stated, I urge this new system only to provide an orderly and efficient method for lower income people to dispose of their property upon their death.

Finally, there is an additional barrier to my plan not discussed by Beyer and Hargrove. How will a person uploading an electronic will onto the state’s database comply with the witness requirement? At this time, I have not fully formed an absolute theory regarding this problem, but there are certainly many possibilities.

For instance, the witnesses could upload their signatures separately with different passwords. The witnesses could login separately, view the will uploaded by the testator, and attest that the document they viewed is the last will and testament of the testator. Or, perhaps, the testator could bring the document in electronic format to a Secretary of State or DMV office and two employees at the office could view the document, attest to the authenticity and upload the document into the state’s database. This latter option would also go a long way in preventing fraud, but would be more difficult and costly.

In summation, I would urge states to enact statutes providing for electronic wills, but argue that the "signature requirement" should not be so strict as to make the creation of an electronic will prohibitively costly. Formal wills are already a luxury of the rich; the state should step in to provide a cheap, efficient method for lower income people to dispose of their estates. Further, it is my hope that these initial thoughts will spur more research and analysis in the area of electronic wills and bring forth more ideas about how to effectively implement a program like the one envisioned in this post.

1  Nev. Rev. Stat. § 133.085 (2001).
2  Id.
3  15 U.S.C. § 7003 (2000).
4  Taylor v. Holt, 134 S.W.3d 830, 834 (Tenn. Ct. App., 2003).
5  Unif. Probate Code § 1-102(b) (1993).
6  Matter of Will of Ranney, 589 A.2d 1339, 1344 (N.J. 1991)
7  Gerry W. Beyer & Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U. L. Rev. 865, 886 (2007).
8  15 U.S.C. § 7003.
9  Supra note 7, at 890-96.
10  Id. at 890-91.
11  See, Stephen E. Blythe, Singapore Computer Law: An International Trend-Setter with a Moderate Degree of Technological Neutrality, 33 Ohio N.U. L. Rev. 525, 561 (2007) (urging Singapore to eliminate similar will and trust exclusions in its electronic signature law). See generally, Mary W. Baker, Where There’s a Will, There’s a Way: The Practicalities and Pitfalls of Instituting Electronic Filing for Probate Procedures in Texas, 39 Tex. Tech L. Rev. 423 (2007).
12  Beyer & Hargrove, supra note 7, at 892-93.
13  See generally, Baker, supra note 11.
14  Beyer & Hargrove, supra note 7, at 893-95.
15  Family Property Law: Cases and Materials on Wills, Trusts, and Future Interests Page 5-18 (Lawrence W. Waggoner et al. eds., 4th ed. 2006).
16  Beyer & Hargrove, supra note 7, at 891-92.

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