Digital Wills — Good, Bad, or Ugly?

The State of Nevada, caught up in the tech boom at the end of the last century, saw the writing on the wall.  The legislators envisioned a world where an electronic will could replace, or at least be an alternative to, the traditional paper will.  Two major requirements of the electronic will were biometric authentication and software to ensure there was only one authoritative copy of the will and that any changes be readily identifiable.  Since the Nevada statute was enacted, biometric authentication systems have been developed that meet the statutory requirements.  However, the authentication software has still not been developed, with the result being that the Nevada statute, passed more than six years ago, has never been implemented and it is unlikely that it will ever be used unless the requirements are relaxed.

This statute and other matters relating to electronic wills are discussed in Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) & Claire G. Hargrove (Associate, Barton, Schneider and East, LLP, San Antonio, Texas), Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U.L. Rev. 865 (2007).

The question posited by this article is whether the time has come to bring wills into the digital age.  A will is often the most important document an individual ever executes.   This document is also more likely to be the subject of litigation than any other legal instrument and therefore should be prepared in such a way as to ensure that the wishes of the testator are carried out.   Because the period of time between executing a will and having it probated often spans decades, preservation of the physical representation of the testator’s dispositive desires is essential to carrying out his or her wishes.  This article traces the development of the physical manifestation of a will from the earliest times to present day and discusses whether, as we move into the electronic age, the paper will should be replaced, or at least supplemented, by a will in digital format.  A brief discussion of electronic trusts is also included.

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