Article on Electronic Wills

    The ascension of the Internet has affected most aspects of our daily lives; its ubiquity has connected us to the point that we can seek, receive, and send information wherever and whenever we desire. Courts throughout the country have begun accepting electronic court filings, making sweat-laden sprints to the courthouse a thing of the past. Similarly, paying court fees is now as easy as visiting a court’s website and paying with a credit or debit card. Legally binding online transactions occur daily, and electronic signatures authenticate requisite signature pages, creating the same potential legal repercussions and rights as contracts executed in the standard paper-and-pen method.

    Probate law–despite its historically protracted evolution–has recently experienced a push towards adopting the conveniences attendant to this electronic age. Possible hypothetical scenarios are endless, but an illustrative issue, reaching the foundations of probate’s canons, arises when a testator has drafted a will entirely online so that it exists only virtually until the testator’s death. Considering recent congressional endorsement of electronic signatures used in electronic commerce, holding electronic wills valid seems justifiable and likely inevitable, despite the explicit exclusion of wills and codicils from the scope of the Electronic Signatures in Global and National Commerce Act. Proponents of electronic wills, however, overlook–and even trivialize–the functions served by adhering to the requirements of a writing, a signature, witness attestation, and publication. Although the everyday benefits of electronic procedures are palpable, so too are their vulnerabilities, provoking fraudulent activity intended to profit from the public’s exponentially increased trust in electronic commerce. The evidentiary and protective difficulties caused by introducing electronic wills are based in the technology’s uncertain nature rather than the construction of legislation designed to take advantage of this new medium. States should not change their probate codes to accord with the ever-changing developments of electronic commerce and technology.

    Expedience, although a substantial benefit, not only increases probate’s vulnerability to illicit activity but also fails to accomplish the aims of electronic will legislation because the extensive and overly technical statutes are not within the reach of laypersons. States should make available to probate courts the existing harmless error doctrine, incorporated into the Uniform Probate Code (UPC) in section 2-503, to allow for a departure from the Statute of Wills’s black-letter requirements when the court is convinced of the testator’s intent. Adopting the harmless error doctrine to validate, where appropriate, electronically drafted documents is a more efficient solution than expanding probate codes to the uncertain and vulnerable arena of purely electronic wills.