The Lawletter Vol 37 No 7
In many areas of law, practitioners nowadays are increasingly forced to apply long-established legal frameworks to digital media and transactions never envisioned by the authors of those legal principles. As society moves more and more toward the digitization of business and personal transactions, it is inevitable that states will soon have to address the rise of the digital will. At present, Nevada is the only state to have codified requirements to create a valid digital will. Remarkably, this law has been in effect for 11 years (and has apparently not yet generated any reported case law). The Nevada "Electronic Will" statute is instructive regarding how will execution formalities might be modified to accommodate digital will execution. It also highlights areas of technological improvement necessary to put digital wills on a par with paper wills in protecting against fraud and undue influence. See Nev. Rev. Stat. § 133.085.
Note that the valid "Electronic Will" under the Nevada statute requires the testator's electronic signature (a common enough feature in modern point-of-sale and online transactions), as well as an "Authentication Characteristic." The statute defines this phrase as "a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using a unique characteristic of the person." Id. § 133.085(6)(a). The Authentication Characteristic thus necessitates incorporating a separate biometric component into the digital will.
While the Nevada statute laudably anticipates the kind of protective features necessary to assure the authenticity of a digital will, in practice the technology to accomplish this goal is seemingly not widely available in the market. First, integration of biometric markers into digital documents for authentication purposes would presumably require oversight to assure that the marker was not merely an electronic copy (i.e., a digital image of a retinal scan) that was cut-and-pasted into the document by parties unknown. Second, the statute necessitates that a single, identifiable "authoritative copy" of the digital will exist, an electronic "original" that must be deposited with a custodian, must be clearly distinguishable from digital copies, and must clearly track any postexecution changes. Certainly, no software or hardware is currently in widespread use wherein parties to electronic documents designate authentic "original" versions, immutably distinguishable from subsequent digital copies. Nor is software in widespread use wherein electronic documents may be evaluated to assure that no unauthorized changes were made following execution. Furthermore, there is a danger with digital wills—documents that may not become effective until many decades following their execution—that significant changes in hardware and software may render digital wills incompatibly archaic and unopenable (imagine a will saved to a 3.5-inch floppy disk in the early 1980s, using the obsolete MacWrite program).
Until such issues are sorted out in the digital marketplace so that electronic execution of instruments generally is recognized as safe and secure from fraud, as well as amenable to long-term storage protected from hardware or software obsolescence, it is unlikely that digital wills will become a common feature in the American landscape.