Academic journal article Harvard Law Review

What Is an "Electronic Will"?

Academic journal article Harvard Law Review

What Is an "Electronic Will"?

Article excerpt

It is a truth universally acknowledged that "[t]he organizing principle of the American law of donative transfers is freedom of disposition." (1) That is, "[p]roperty owners have the nearly unrestricted right to dispose of their property as they please." (2) As the right to dispose of property extends beyond death, one way that a testator can make her wishes known is, of course, by creating a will that lays out her estate plan in detail. To ensure the authenticity of the wills that are presented to probate, however, a testator must follow a set of "formalities" in creating and executing a will (traditionally, these are writing, signature, and attestation). (3) Formalities help ensure that only valid wills are admitted to probate by creating a standard form and method for will creation and execution, cautioning the testator of the gravity of the step she is about to take, and protecting the testator from those who may attempt to take advantage of her. (4)

For centuries, the formalities associated with wills underwent little modification. (5) However, the rise of technology in recent years is likely to bring with it a flurry of previously unforeseen circumstances for probate courts to confront. American probate courts are slowly being asked to judge the validity of "electronic wills"--wills that have been written, signed, and/or attested using an electronic medium. Testators' use of electronic media for wills is hardly surprising given a trend of increasing personal data storage on electronic devices (6) and in "the cloud" (7): one popular cloud storage service, Dropbox, reported reaching 500 million users in 2016, for example. (8)

Although scholarship on electronic wills remains limited, scholars and practitioners have suggested a variety of options for courts and legislatures dealing with electronic wills. (9) These run the gamut from continuing to interpret wills as requiring a handwritten document, (10) to creating a centralized database regulated by the government that would store all electronic wills, (11) to using existing wills doctrines to authenticate electronic wills on a case-by-case basis, (12) to laying out a statutory regime that would allow for presumptively valid electronic wills in some situations. (13)

However, since scholars typically use the term "electronic will" to encompass a variety of situations that pose vastly different questions about validity, scholarly proposals on whether electronic wills should generally be considered valid or invalid--and under what standard--are hard to assess. As used today, an electronic will could mean any writing along a broad spectrum from a will simply typed into a word-processing program by the testator on a computer and stored on its hard drive (14) to a will signed by the testator with an authenticated digital signature, witnessed or notarized via webcam, and stored by a for-profit company. (15) This Chapter suggests that such a broad view obscures the critical distinctions between different situations in which a will is created and/or executed electronically. This Chapter therefore attempts to organize the discussion of electronic wills by providing an analytical framework for weighing their validity.

This Chapter disaggregates the one-size-fits-all term "electronic will" into three distinguishable categories of electronic wills: offline electronic wills, online electronic wills, and qualified custodian electronic wills. offline electronic wills are those that are simply typed (or "handwritten" via a stylus) onto an electronic device by the testator herself, signed by way of the testator typing her name or putting another signatory mark into the electronic document, and stored on the electronic device's local hard drive--they are typically never printed, traditionally attested, or uploaded onto a website. By contrast, online electronic wills are those that incidentally bring another private actor (a technology company, a cellphone service provider, etc. …

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