Digital Wills: Will They or Won’t They?

On January 24, 2019, Cory McCormick, a Las Vegas police officer, signed the United States’ first ever digital will.  “Mr. McCormick was able to sign and notarize his will in minutes,” which otherwise would have taken him “nearly an hour,” not including the time required to travel and find a lawyer.  This will was created with the help of a San Diego startup Trust & Will, which defines itself as an “online service providing legal forms and information,” and a Boston startup, Notarize.  Although the first of its kind, the benefits of this particular technology are clear.  As noted by the CEO of Trust & Will, Cody Barbo, “[b]y digitizing the entire process, people can proactively manage their estate and dynamically update it with major life events such as children, liquidity, inheritance, and more. As more states accept online wills, Notarize will be the dream partner to deliver this experience to more of the country.”  In addition, this technology is especially valuable considering a 2017 study found that the majority of American adults do not have a will.

Given Barbo’s statement, it is logical to ask how many states have accepted online wills. Currently, Nevada is the only state that statutorily allows for such wills.  However, Nevada isn’t the only state that has shown an interest.  Florida came close to passing its own statute through its Electronic Wills Act.  This Act managed to pass the Florida Legislative branch, earning a 34-0 vote in the Florida Senate.  However, the bill was vetoed by then-Governor Rick Scott, who offered a letter explaining his concerns with the bill.  In this letter, Governor Scott explained that while he believed electronic wills to be “innovative,” he didn’t feel the bill adequately balanced the “competing concerns” of accessibility and the institution of proper safeguards.

Scott’s concerns were also illustrated in a white paper by The Real Property, Probate and Trust Law Section of the Florida Bar (“RPPTL”).  The RPPTL argued that the bill went past simply using a tablet or computer to sign a will and touched on important questions such as (1) how to regulate electronic notarization technology; (2) how to safely store and access digital wills; and (3) how to integrate the proposal with existing Florida Probate Code.

Regulations of Electronic Notarization Technology

The RPPTL argued that the clause in the Florida Act allowing for “electronic notarization by audio and video technology” necessitates including a process explaining “the approval and regulation of the necessary technology.”  It pointed to Virginia, “the first state to allow notarization of documents using audio and video technology” to provide an example of these regulations including, for example, (1) a certain quality standard for video and audio communications, and (2) a confirmation of identification through not only government-issued ID but also by additional means.  These additional confirmation steps can include (i) personal knowledge, (ii) a precursor in-person identity proofing process as described by the Federal Bridge Certification Authority, or (iii) a “valid digital certificate accessed by biometric data” in agreement with the specifications dictated in National Institute of Standards and Technology in Federal Information Processing Standards Publication 201-1.

The Safe Storing and Access of Digital Wills

Another common concern with digital wills is the idea that these databases could become the ideal target for hackers, given the financial incentives for altering wills.  In addition, the white paper points out that, given the fact that wills often need to be safely stored for significant periods of time, technological adaptations to the digitally stored will over time must also be considered.  The RPPTL has noted that e-will companies such as willing.com have advertised that they use “bank-level security to keep [] information safe,” but they note concerns even with this level of security, pointing out the large number of U.S. banks that have been hacked.  In addition, the RPPTL pointed to reports that the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) has been pleading with banks to increase their security in order to raise better defenses against cyberattacks.  The RPPTL has proposed including “public-key cryptography and digital watermarking” technologies in the language of the Florida proposal in order to help ensure no wills are altered in any way.  They also note the concern of potentially unfair “terms of service” in online will companies that can possibly serve to dupe clients.

Proper Integration of New Technology with Existing Code

The RPPTL’s third major complaint revolves around the idea that a significant deviation from the current law can result in unintended consequences unless the integration of the new technology and existing code is properly studied.  They argue that the language of the Florida Proposal as written leaves many questions unanswered, such as “once a testator dies, how and when does an electronic will get deposited with the court?”  Current Florida law requires a qualified custodian to deposit a will with the court; the Florida Proposal, according to the RPPTL, appears not to require this. They argue that changes such as the ones in the Florida Proposal require significant time to study.

Conclusion

It is clear that digital wills offer many benefits.  They can significantly cut back on the time and inconveniences in making a will.  They allow technology to move forward in a legal area that has historically resisted technological advancements.  Proponents of digital wills point to other areas of the law that have advanced thanks to technological innovation, such as “online legal service, e-discovery, practice management software,” and intellectual property/trademark software services, to name a few.  Although this is promising technology, as indicated above, there are important considerations to keep in mind when drafting bills allowing for such technology.  This is clearly an evolving area of law and it will be interesting to see how states adapt to this technology.

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