A person's last will has always followed a set of unchanging requirements for centuries. One of these requirements is a signed physical and tangible document.
The growing trend of electronically generated wills is challenging this long-held practice.
Currently, the only states that recognize electronic wills are Indiana, Florida, Arizona, and Nevada.
But social distancing protocols due to COVID-19 could potentially encourage more states to follow suit. There are already guidelines in place. In 2019, the Uniform Law Commission issued the Uniform Electronic Wills Act. This law serves as a basis for other countries that plan to adopt electronic wills.
Whether it's dividing assets among family members, discussing with a funeral director, or making other final preparations, an electronic will might be something to consider.
The case for electronic wills: ease and accessibility
Nowadays, there are several tasks — administrative or otherwise — that can be easily done online. What would be the benefit of creating a last will via digital methods?
For one, an electronic enables any person to create and execute last wishes without leaving the house. Scheduling an in-person appointment with a notary would no longer be required. A video call would be sufficient. Documents would be sent back and forth for signature and confirmation — just like any other e-document these days.
Businesses that provide online legal services see demand from younger people. Young people are generally more tech-savvy and are likely to see the value in creating an electronic will.
Supporters of electronic wills also claim that the field of estate planning would benefit from low-cost and convenient digital transactions. More people can access such services and be better off —having a will is arguably better than having no will at all. Additionally, electronic wills can reduce the reliance on paper, which is vulnerable to fire, decay and other forms of damage.
Increased risk of tampering and fraud
However, several lawyers and legal experts are still skeptical of electronic wills.
There are stringent requirements that must be observed before a will can be executed. Such rules are intended to ensure that wills aren't created as a result of fraud or undue influence.
For instance, the testator must be in the presence of eyewitnesses who can attest that the document was signed voluntarily. Additionally, if the will is contested, the signed physical document can be examined closely for any signs of authenticity or lack of it.
Conversely, an electronic will can be crafted by unscrupulous individuals who used an e-signature without proper authorization. Online legal services can implement checks and balances to avoid this. But practitioners foresee a rise in lawsuits as a result of adopting electronic wills.
And as people find themselves in litigation, they'd need to invest a lot of time and money to successfully defend the will's authenticity. Such a scenario would go against the accessibility argument for electronic wills.
For people with significant assets to bequeath, the task of estate planning is more complex. Therefore, an electronic will may not be the best path to take.
A traditional will, with proper legal and tax planning, is recommended for large estates. It could take a few more years or decades to make electronic wills suitable for these cases.
For those who have simpler considerations for their last will, going digital may potentially be beneficial.