Will Estate Planning go Digital?

The idea of eliminating the need for paper copies of estate planning documents such as Wills or Trusts may at first glance seem natural to clients given our society's trend toward limiting the use of paper and problematic to estate planning attorneys who see the authentication process as a major stumbling block.  I personally like the idea in theory, but only if the technology exists to guarantee that the authenticity of the Will or Trust is preserved and even then it is a risky proposition.

Right about the time this idea was bouncing around my head I noticed a couple of great posts from Professor Gerry Breyer on the Wills, Trusts & Estates Prof Blog titled "Digital Wills - Good, Bad or Ugly?" and "Star Trek and Digital Wills."  Professor Breyer was kind enough to send me a copy the article he and Claire G. Hargrove authored titled "Digital Wills:  Has the Time Come for Wills to Join the Digital Revelution?" which appeared in Ohio Northern University Law Review this Fall.  This is not the proper form for me to present my review of Professor Breyer's article, but I did want to mention his conclusion since I very much agree with it.  The article concludes that the uniqueness and expected application of a Will differentiates estate planning documents from commonly prepared legal documents.  A Will is often not implemented for many years after the Testator executes the document.  Therefore, it is absolutely essential that the document is preserved for many, many years.  The article goes on to say, "...[T]he current fragility of the electronic storage mdium, and the rapid development and lack of standardization of computer systems makes the concept of an electronic will a risky enterprise." 

The conclusion as I see it at this time is relatively simple.  The idea of Digital Wills or Digital Anything for that matter carries an unknown amount of risky with it.  Will your Word 2007 or PDF version Will be accessible in 20 years after 15 new software updgrades?  There is no way of knowing for sure.  That is why, at least for now, there is no option better than a paper Will.  However, the future is coming whether we like it or not and that will likely mean this will not be the last time we entertain this topic.