'What Is an “Electronic Will”? Chapter Four - Developments in the Law' in (2018) 131
Harvard Law Review 1790
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It is a truth universally acknowledged that “[t]he organizing principle of the American law of donative transfers is freedom of disposition.” That is, “[p]roperty owners have the nearly unrestricted right to dispose of their property as they please.” 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). More
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.
For centuries, the formalities associated with wills underwent little modification. 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 and in “the cloud”: one popular cloud storage service, Dropbox, reported reaching 500 million users in 2016, for example.
Although scholarship on electronic wills remains limited, scholars and practitioners have suggested a variety of options for courts and legislatures dealing with electronic wills. These run the gamut from continuing to interpret wills as requiring a handwritten document, to creating a centralized database regulated by the government that would store all electronic wills, to using existing wills doctrines to authenticate electronic wills on a case-by-case basis, to laying out a statutory regime that would allow for presumptively valid electronic wills in some situations.
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. 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.) into the mix — for example, where a testator logs into an existing social media account and creates a post that is intended to serve as the testator’s will. Such wills are those typically stored on the private actor’s servers or in “the cloud,” subjecting them to statutes regulating the management and retention of personal data as well as the private actor’s own policies — but also ensuring that a neutral third party is able to provide objective evidence on critical questions such as when a document was created. Electronic wills of the third type are created where a company becomes a “qualified custodian” that would create, execute, and store the testator’s will, subject to rules and regulations put forth by a state. In addition to identifying these three electronic will categories as separate and distinct, this Chapter suggests that each category raises unique evidentiary and other functional issues that create special concerns for courts and policymakers to keep in mind when regulating electronic wills.
Section A provides an initial overview of will formalities, the functions they serve, and the compliance standards that are currently used by American courts. Section B discusses each proposed category of electronic wills (offline, online, and qualified custodian) in turn, highlighting the practical disputes that are likely to arise under each category as well as, where possible, how courts in other countries have attempted to deal with such issues. Section C concludes by connecting the issues discussed in this Chapter to a general trend of increasing personal data storage online, emphasizing one last time the need for — and importance of — a clear, predictable framework for electronic wills.
