About Electronic Wills

As technology continues to be woven into every element of our lives, estate planning and the law have not been as quick to adapt to these technological advances. Wills, one of the most utilized and traditional legal documents in our society, have been especially insusceptible to changing with the times.

In this day and age, we have to capability to draft wills on computers, smart phones and tablets, testators (especially young testators) have even begun to draft their own “electronic” wills. Only a handful of states have established electronic wills statutes to address the validity of electronic wills, which creates uncertainty as to the validity and future of electronic wills in the commonwealth. 

Electronic wills, by their very nature, usually do not comply with the execution requirements of written wills. Therefore, electronic wills are an entirely new class of “wills” that require us to reevaluate our traditional views on the disposition of an individual’s probate assets when they die. The term “electronic will” generally refers to one of three types of testamentary documents: offline wills, online wills and custodian online wills. 

Offline Wills 

An offline will is a will that is made on a computer or electronic device and is also stored locally on the computer, device or a storage device. For example, an offline will could include a document typed by the testator and stored on the testator’s computer, a document written on a tablet or smart phone with a stylus or electronic pen and stored locally on the testator’s device, or an electronic document stored on a USB drive or external storage device. 

Offline wills are not without their disadvantages. Offline wills can be very challenging to authenticate. Metadata can provide information such as the date of creation of the offline will, the date(s) of modification of the offline will, the date(s) of access of the offline will, or the identities of the users who accessed the offline will. 

The threat of fraud is also high in the case of offline wills due to there being no way of knowing whether the testator created the offline will or if someone logged in as the testator to create the offline will. 

Electronic devices can also be subject to hardware problems. Documents stored on a computer, tablet or smartphone are only as good as long as the devices are not discarded, crashes, lost or hacked, a testator’s will could be lost or corrupted forever. 

In order for the offline will to be found, the testator must tell someone how to access the documents, or the will may never be located.

Depending upon the laws of the state, documents stored on a computer or device may not be able to be accessed by law (or can only be accessed after probate). Accessing the computer or device could potentially be a violation of the Computer Fraud and Abuse Act (CFAA). The CFAA criminalizes the unauthorized and intentional access of computers and devices.

The CFAA is silent as to its applicability to fiduciaries and whether executors possess the requisite authority to access a decedent’s digital assets and digital accounts. If an individual impersonates the decedent (by using his/her username and password), such impersonation is potentially a violation of the CFAA. Such an action is essentially “hacking” into the decedent’s account. 

Online Wills 

An online will is just like an offline will, but is not stored locally on an individual’s computer, phone tablet or external storage device. An online will is stored electronically and accessible on the internet through an online medium (like a cloud-based storage system). These online mediums are typically subject to terms of service agreements and were probably never designed to store estate planning documents.

In addition to the potential disadvantages with offline wills, the online nature of online wills opens them up to some potential issues. Accessing an online will is potentially a violation of the Stored Communications Act (SCA). The SCA provides that a user or entity providing electronic communication service shall not knowingly divulge the contents of a communication electronically stored by the service provider. Such an unauthorized disclosure will subject the offender to criminal liability.

A service provider may reveal the contents of an electronically stored communication without the fear of liability if the originator or intended recipient of such communication provides “lawful consent” to reveal of such private digital information. The SCA is silent as to whether the “lawful consent” exception applies to fiduciaries who are attempting to gain access to the contents of a decedent’s electronically stored communications. In a jurisdiction that has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) a decedent may provide lawful consent through his/her will. 

Custodian Electronic Wills 

A custodian electronic will, unlike an offline will or an online will, is drafted by or with the assistance of a third-party entity (typically a for-profit company) that will store the document on its online platform. The third-party entity may offer a form of will to the testator, or it may generate the electronic will after the testator answers a series of questions. Once the testator’s will is generated, the testator will pay the third-party entity to hold and store the testator’s will.

Just as offline and online wills have their problems, custodian electronic have their own set of potential issues as well. Custodian electronic wills share some of the same difficulties present with online wills with respect to access of a custodian electronic will after the testator has died.

Due to custodian electronic wills being held by a third-party custodian, they are subject to the SCA and the TOSAs of the custodian. While a third party should create an online tool designed to provide a designated individual with access to the testator’s will at death, each third party’s online tool will likely be different. 

The Future of Electronic Wills 

The future will decide whether these statutes have adequately addressed electronic wills and the potential pitfalls that face testators and their loved ones. Ultimately, states will need to address this probate revolution. Until then, get ready for the ride that electronic wills will provide. 

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