Electronic Wills Analyzed

Joseph Karl Grant (Associate Professor of Law, Capital University Law School) has recently posted on SSRN his article entitled Shattering and Moving Beyond the Gutenberg Paradigm: the Dawn of the Electronic Will, 42 U. Mich. J.L. Reform 105 (2008).

Here is the abstract of his article:

This article examines what can be dubbed the “Gutenberg Paradigm” to describe the legal profession’s preference for written documents, and the effect that the “writing” requirement has on a testator’s ability to create their will.

First, this article explores the history of print, Johann Gutenberg’s role in this development, and society’s general progression from an oral tradition, to manuscript tradition, and ultimately to a print tradition. This article examines the history and policy underpinnings of will execution formality statutes in the United States, and the critical importance the “writing” requirement plays in those statutes. This article examines and critiques groundbreaking Nevada legislation that allows testator’s the option to create digital/electronic wills (i.e. audio taped and videotaped wills). Using the Nevada legislation as a point of departure, this article points out several pitfalls and shortcomings in the Nevada legislation and offers concrete suggestions for improvement in the form of a proposed model electronic wills statute that states can adopt to allow for the creation of electronic wills. Also, this article explores how electronic wills may become reality through linguistic change and revision of existing legislation. Ultimately, this article raises and responds to some of the basic anticipated common concerns and criticisms regarding electronic wills.

Hopefully, this article will lead to a lively debate regarding the role of technology in an “ancient” area of law such as wills and testate succession.