The process for creating a legally binding Will has been around for a very long time. From the very beginning a Will has been made up of a series of documents so that all aspects work the way they were designed. Without these documents in place, the Will would be left open to interpretation by the courts which generally don’t always fit the authors’ wishes.
In order for a Will to be valid, it must be a written document. It must be signed by the person who it is representing in front of witnesses, who must also sign the documents. And when it is time to execute the Will in front of a judge and the court, the original signed documents must be presented. It has been this way since Wills were first created.
It all makes sense when you think about it…if these processes weren’t in place, anyone could come forward and claim ownership to the estate. After all, the deceased cannot come forward and testify that the will is valid so there had to be an official way to validate it. By having witnesses present upon signing, they can testify they saw the deceased sign the will while he or she was of sound mind and body and not under any duress.
Fast forward to the turn of the century and the majority of what we write is now in digital format. Along with our writing, often times people want their will in digital format as well. This transition from writing to digital is posing many more issues and complexities for everyone. There was an interesting article that talks about this transition and the issues surrounding the move from written to digital in the New Yo rk Law Journal called, "Wills in the Digital Age."
As you probably read in the article, the first thing to figure out is what counts as a digital signature for the purposes of a Will. While digital signatures are allowed for other agreements such as contracts and taxes, there are more complexities when it comes to documents surrounding a Will or other estate documents. However, even with all of these advancements, the challenge is to still ensure the signature is valid.
Even if the Will is signed electronically, it still requires the signature of witnesses. So if this is still the case, the question is to define what constitutes “witnessing” a digital signature. How does this happen is the signature is made with the click of a button? Do the witnesses have to be present for “the click” by the signer? And is there a way for the witness to also electronically sign the document that they witnessed such an event?
Another question to consider is where are the digital signatures stored? It has to be something that is locked away without the chance of being edited after being signed. How do we protect the person (and their witnesses) who signed the document so they don’t have to worry about the risk of tampering? With all these challenges, the introduction of digital Wills is likely to be sporadic in different states throughout the country. There will most likely be different approaches and different rates of adoption. It will be interesting to watch this develop over the next several years. Time will tell how quickly this will be changed and adopted.