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Technology Adrift: in Search of a Role for Electronic Wills

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Technology Adrift: in Search of a Role for Electronic Wills Boston College Law Review Volume 61 Issue 3 Article 2 3-30-2020 Technology Adrift: In Search of a Role for Electronic Wills Adam J. Hirsch University of San Diego, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/bclr Part of the Courts Commons, Estates and Trusts Commons, International Law Commons, and the Legal Writing and Research Commons Recommended Citation Adam J. Hirsch, Technology Adrift: In Search of a Role for Electronic Wills, 61 B.C.L. Rev. 827 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss3/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. TECHNOLOGY ADRIFT: IN SEARCH OF A ROLE FOR ELECTRONIC WILLS ADAM J. HIRSCH INTRODUCTION ............................................................................................................................ 828 I. CLASSICAL STATUTES .............................................................................................................. 829 A. Statute of Wills ................................................................................................................... 830 1. The Writing Requirement .............................................................................................. 830 2. The Signature Requirement ........................................................................................... 835 B. Incorporation by Reference ................................................................................................ 836 C. Living Trusts ...................................................................................................................... 838 II. NEOCLASSICAL STATUTES ...................................................................................................... 840 A. Harmless Error .................................................................................................................. 840 B. Choice of Law .................................................................................................................... 843 III. MODERN STATUTES ............................................................................................................... 846 IV. THE CASE LAW ...................................................................................................................... 851 A. American Decisions ........................................................................................................... 851 B. Foreign Decisions .............................................................................................................. 855 V. VIRTUES AND VICES OF ELECTRONIC WILLS ......................................................................... 859 A. Theory ................................................................................................................................ 859 B. Empirical Evidence ............................................................................................................ 870 VI. TOWARD A POSTMODERN STATUTE ...................................................................................... 873 A. E- for Emergency ............................................................................................................... 873 B. Anti-Electronic Wills .......................................................................................................... 889 CONCLUSION ............................................................................................................................... 895 APPENDIX .................................................................................................................................... 897 TRIBUNAL DE GRANDE INSTANCE [TGI] [ORDINARY COURT OF ORIGINAL JURISDICTION] METZ, CIV., AUG. 17, 2018, 17/01794: ................................................................................................... 897 TINGSRÄTT [TR] [DISTRICT COURT] 2012-11-16 T5746-11: ...................................................... 900 HOVRÄTT [HOVR] [COURT OF APPEAL] 2013-06-13 T11306-12: ............................................... 903 827 TECHNOLOGY ADRIFT: IN SEARCH OF A ROLE FOR ELECTRONIC WILLS ADAM J. HIRSCH* Abstract: This Article addresses the law and public policy of electronic wills. The Article analyzes state statutes that either apply explicitly, or might apply im- plicitly, to wills of this type and concludes that judicial approval of electronic wills is already within the realm of possibility even in the many states that do not expressly allow them. The Article also examines the case law to date on this is- sue, both in the United States and in foreign jurisdictions, including several cases that have not previously been noted by American commentators. The Article then addresses the merits and demerits of electronic wills and presents the results of the first large-scale empirical study of popular attitudes toward these wills. In light of this analysis, the Article proposes a new approach: to bar electronic wills in general, but to permit them for estate plans made under emergency conditions. INTRODUCTION To update an old saying, the handwriting is on the screen. Electronic wills (e-wills) are coming, and we cannot resist the onslaught of technology—or its infiltration of law—any more than we can hold back the tide. Our distant de- scendants will smile at wills inked upon paper as a quaint reflection of the times, just as today we smile at wills etched into clay tablets by our ancient ancestors.1 Perhaps, perhaps. The day may come when all communication apart from oral speech is digitized for the reason that—like clay tablets—paper no longer exists, or at least ceases to be readily available.2 That day lies in the future, however. Lawmakers must act in, and for, the here and now—ours being, it would seem, a transitional age, when paper and screen stand side by side as alternative channels of communication. © 2020, Adam J. Hirsch. All rights reserved. * Professor of Law, University of San Diego. M.A. 1979, J.D. 1982, Ph.D. 1987 Yale University. My thanks to David Horton, Krista Jenkins, Julia Kelety, and Bruce Stone for helpful comments and to Sara Pike for research assistance. 1 Babylonian wills and related materials survive from the third millennium B.C., before papyrus was invented. See ASSYRIAN AND BABYLONIAN LITERATURE: SELECTED TRANSLATIONS 271–76 (Robert Francis Harper ed., 1904). 2 The production of paper hinges on demand—but also on supply, in the face of looming defor- estation. Paper wills cannot persist without trees! See Will Dunham, Earth Has Three Trillion Trees but They’re Falling at Alarming Rate, REUTERS (Sept. 2, 2015), https://www.reuters.com/article/us- science-trees/earth-has-3-trillion-trees-but-theyre-falling-at-alarming-rate-idUSKCN0R21Z62015 0902 [https://perma.cc/R5AU-P9YZ]. 828 2020] In Search of a Role for Electronic Wills 829 This Article addresses the public policy of electronic wills in the year 2020. I will strive to assess the subject pragmatically—neither idolizing tech- nology nor launching a tired tirade against it. As a springboard for its analysis, the Article presents the results of the first large-scale empirical study of de- mand for, and popular assumptions concerning, e-wills. In the pages following, I will argue that, as a general proposition, elec- tronic wills serve poorly to fulfill the functions of testamentary transfers. Therefore, lawmakers ought to disallow them, under ordinary conditions. Yet, analysis of prevailing statutory law leads to the surprising conclusion that courts have room to find e-wills valid without any changes of current legisla- tive text in many jurisdictions. Accordingly, the prevailing statutes need revis- ing to clarify legislatures’ intent to bar e-wills. At the same time, I will argue that electronic wills can play a useful role today—and increasingly so—within the confined sphere of emergency estate planning. Ultimately, then, I offer a schizophrenic perspective on e-wills. I shall advocate permitting them when made under exigent circumstances, but prohibiting them under other circumstances. The Article unfolds in stages. In Part I, I assess the prospects for judicial recognition of electronic wills under the traditional framework of inheritance law. 3 In Part II, I ponder the same question in light of more recent embellish- ments to that framework.4 In Part III, I survey and compare the emerging stat- utes explicitly aimed at validating e-wills.5 In Part IV, I proceed to examine the extant body of case law on e-wills, both in the United States and abroad.6 Sev- eral of those cases are noted (and two are translated) for the first time in the American legal literature.7 In Part V, I assess the public policy of e-wills, fur- ther illuminated by an inaugural empirical study of popular attitudes toward these wills.8 Finally, in Part VI, I propose a new model for integrating e-wills into inheritance law.9 I. CLASSICAL STATUTES Statutory law in the realm of inheritance is notoriously stagnant. If only 10 because of “[g]eneral legislative disinterest,” the field is crawling with old 3 See infra notes 10–77 and accompanying text. 4 See infra notes 78–117 and accompanying text. 5 See infra notes 118–153 and accompanying text. 6 See infra notes 154–218 and accompanying text. 7 Original
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