We are seeing an increasing number of articles about “online Wills” but the definition seems to be vague. Let us explore what exactly is meant by an “online Will”.
What is a Last Will and Testament
There are clear laws as to what constitutes a legal Last Will and Testament and these laws are quite consistent across all jurisdictions. To be a legal Will, the document must be written or typed on a piece of paper, and usually it must be signed in the presence of two independent witnesses who have nothing to gain from the contents of the Will. We say “usually” because in some jurisdictions they accept a “holographic Will” which is entirely written in your own handwriting, and does not require the two witnesses.
There is one other exception; the nuncupative or “oral Will” which is accepted in about 20 States under very specific circumstances and is generally not an approach that can be widely used.
The law in every State is unequivocal on the requirement for the document to be written on a piece of paper, and this has not changed since the law was first written centuries ago. It’s a pity because clearly technology evolves rapidly, and we now have smartphones, computers, digital signatures, cloud storage and encryption technology None of which have been adopted in any estate law. This means that recorded Wills, video Wills, verbal promises and “online Wills” are not permitted.
What is an online Will?
At USLegalWills.com we offer an “online, Will service” meaning that you can prepare your Will entirely online and like this contract dispute in Canada, the placing of the comma is crucial. There is no legal recognition of an “online Will” meaning a document that is prepared online and stored online. Many services claim to be able to “store your Will online” but any digitally stored document, even a facsimile, scanned or digitized version of your Will is not legally admissible to the probate courts.
The law still requires that a Will is printed, signed and witnessed and then stored in the hope that your Executors will be able to find the document and have access to it at the appropriate time. We would love estate planning law to move with the times and accept digitally signed copies securely stored in the cloud, but this doesn’t appear to be happening any time soon.
Some of the issues with printed signed Wills that would be circumvented with the adoption of online technologies are;
- Signatures cannot be forged: it boggles the mind that in 2014 the law considers that the best way to legally identify an individual is a scrawled signature. It is the easiest way to fraudulently produce a Will, and we end up relying on the testimony of a “handwriting expert”. A Digital signature is a mathematical way of authenticating the identity of an individual that is almost impossible to forge.
- Online Wills cannot be “peeked at”: At USLegalWills.com we provide a “keyholder” mechanism which makes the document available to the right people at the right time. If any keyholder attempts to view the Will at the wrong time (while you are alive) there is a trace of the activity that is sent to the account holder. This is a much more secure approach than keeping a sealed envelope in the bedside table.
- There will only be one current version: We encourage people to update their Will throughout their lifetime whenever personal or financial circumstances change. But we often have people use our service who have an older Will in the care of a lawyer or estranged family member. This can result in multiple Wills being presented at the time of probate which ends up being one of the most common causes of an estate dispute. With online storage of a Will, there will always be one Will updated over time.
- Online Wills cannot be destroyed: Paper is by its nature a very fragile media for storing such an important document. Even if it is kept safe, paper will deteriorate over time. But more importantly there is hardly any natural disaster that takes lives that can be endured by a piece of paper. Every time people lose their lives to a flood, hurricane, fire, tsumani, they will invariably lose their Last Will and Testament as well.
- Online Wills can be found: Our single most asked question at USLegalWills.com is “my mother/father had a Will, but we don’t know where it is. How can we find it”. It is a pity that so many people take the time to prepare a Will, only for that Will to be so safely stored that it is never found. If the Will cannot be found, then as far as the law is concerned, it doesn’t exist.
There is a glimmer of hope from other jurisdictions; like this story from Australia where a court ruled that a Will typed on an iPhone is legally valid. But these were very specific circumstances and it is not considered to be a ruling applicable to the general public.
For now, when you are using an online, Will service i.e. a Will service that is online, you can step through the service entirely online, but the completed document must then be signed in the presence of two witnesses and this printed, signed document becomes your legal Will.
Don’t be fooled by any online service that offers to store your digitized Will online. This document is not legally valid and will not be accepted by the probate courts.
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