Get Ready for Electronic Wills

As an adjunct professor at Osgoode Hall Law School in Toronto, I teach a first-year course called “Wealth, Death and the Lawyer”.  We discuss how the development of the law of wills and succession is influenced by all kinds of factors – history, politics, religion, sociology, philosophy, culture, ideology and economics.  We also examine how our laws came to be and what needs changing. Every year, out of 20 papers, at least 20% are on the topic of “Electronic Wills”. My students, mostly in their 20s, get it. There are better ways of doing everything (almost), including Wills.

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E-Wills are not novel. They are permitted in other jurisdictions, such as Nevada, Arizona, Florida and Indiana. There is a new Uniform Electronic Wills Act in the United States.   Of course, concerns abound - security, increased fraud, privacy, abuse, frivolity, among others. These concerns are not new.  In one of my classes, we analyze how holograph wills originated in the 17th century. Guess what? There were serious concerns about all of the same issues, then.

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Of course, new technology, and change generally, brings new issues.  It was that way in the 17th Century and it is the same now.  But it is easy to overlook that the current way of doing things has its own very significant issues.  Like anything familiar, we are so used to the problems that simply accept them as inevitable.  

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Do we really think that a single written paper document is a the only secure method implementing a person’s testamentary wishes or that the physical presence of witnesses and wet signatures are the only way to reduce undue influence and fraud?

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Of course, safeguards for security and privacy, protection from malfeasance and ensuring only intended wishes are implemented are crucial requirements to any will legislation. But to assume that there is no better way to express testamentary freedom puts us on the wrong side of history.

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