It seems that our world is rapidly becoming a digital one, with more and more services available online every day. From online banking to digital music lessons to web-based learning, it seems that the limits of the internet are being challenged all the time. That also holds true for some types of legal services, including estate planning. A number of sites now offer “digital” estate planning, with tools to help you determine the type of vehicles you want to use and forms that will allow you to draft and execute a valid estate plan. You can even store your Last Will and Testament (“Will”) online.
But there are still a lot of unanswered questions surrounding digital Wills:
- How do they get witnessed?—Under most state laws, witnesses must be present in the same room as the person executing the will and must actually observe the person signing the Will. Can a digital Will be witnessed remotely? If so, how can there be certainty about what document was signed?
- How does a digital Will get signed?—Electronic signatures look very different than physical signatures. How do witnesses know if the person executing the Will is looking at the same document as they are?
- What about the legal capacity of the testator (person executing the Will)?—One of the functions of having witnesses is the verification that the person executing the Will was neither mentally incompetent, under the influence of drugs or alcohol, subject to duress or undue influence, or a victim of misrepresentation or fraud. If the witness is not in the same room with the testator, how can there be certainty about legal capacity?
- Can a digital Will be hacked?—How secure is the file? Can a potential heir hack into the database and change the terms of the Will?
- What happens if the server crashes or the power grid goes down? Will the will be backed up somewhere? Will the testator have a hard copy, if necessary?
- How does a testator make a digital, codicil? Does that codicil need to be stored with the original digital Will?
- How does a testator revoke a digital Will? A digital Codicil?
- What happens if the company storing the digital Will or codicil goes out of business?
For many of the reasons stated above, most states have been slow to embrace digital Wills. These issues will need to be resolved before digital Wills become commonplace.
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