This blog was written by Isabelle Cadotte – Estate and Trust Consultant with Scotia Wealth Management
One of the silver linings of the pandemic has been our collective rethinking of how we work and our willingness to embrace technology that helps us stay connected and work smarter.
From remotely sworn affidavits, to virtual courtrooms and e-filings, courts across the country are embracing the opportunity to modernize their processes and increase accessibility to and affordability of justice. And, not to mention the billions of trees we might save by utilizing electronic documents and processes to their fullest potential.
On the way to a brave new virtual world, e-Wills might become a more efficient way of documenting our last wishes. Many jurisdictions and their law commissions have been toying with the idea. Some American States have made the jump to legislating e-Wills. They are arguably acceptable in Australia, where courts can validate technically invalid wills that are otherwise in “substantial compliance” with will-making rules. Alberta and British Columbia, also being “substantial compliance” jurisdictions, might even be able to do the same. After all, if a post-it note or a paper napkin is good enough to amend or make a will, wouldn’t an e-Will be acceptable too?
Potential pitfalls exist, of course: custody of the original e-Will, security of third-party cloud storage platforms, testator authentication, the chicken-and-egg conundrum of accessing the e-document pending probate. Perhaps blockchain and smart contracts hold an answer to these concerns. Blockchain offers a virtually unhackable chain of custody, reliable record-keeping and convenient token-based authentication. I’d explain how it works but that would mean using my last lifeline to call Elon Musk.
The technology is gaining momentum. Ahead-of-the-pack entrepreneurs want to integrate blockchain into the real estate market; accountants and contract-drafting lawyers love it; and it’s becoming synonymous with product quality (and greater profitability) in the agricultural world.
At the risk of helping make my job obsolete, I would posit that blockchain may eventually offer the key to substantially streamlining the estate administration process. We could use it to create virtually authenticated death certificates and grants of probate, assure the integrity of burial plots, securely transfer digital assets to beneficiaries, close out online accounts of all sorts in one click, automatically pay out net-of-tax inheritances, and prepare and file probate applications. Instead of the byzantine process of administering an estate post-COVID, blockchain could enable the executor to securely download an authenticated, unalterable grant directly from the courthouse and in a matter of seconds use it to deal with investments and access online accounts – reducing financial losses to the estate and unnecessary effort for the executor. The vagaries of handling digital assets and attendant loss of valuable digital property would also decrease. Backstops could be built into the will-making process to avoid arcane technicalities like the dreaded rule against perpetuities which, to this day, still catch law students, will drafters and do-it-yourselfer testators unawares. Who knows, maybe probate won’t even be necessary in a blockchained world…
I for one would love to be able to say I have a crypto-will because it just sounds so cool and edgy. But, more than a fad, a crypto-will and blockchain estate might well make dying a little easier.