This blog was written by Ardena Bašić
The stereotypical will everyone imagines usually consists of aged scrolls, fine black ink and sophisticated language such as “henceforth” and “thereafter.” However, in our increasingly digitized world, a new type of estate planning has arrived. Online, digital and electronic wills are increasingly rising in prominence, and are on track to become far more common than the aforementioned ‘founding fathers style’ scroll. In fact, the use of technology to prepare one’s wills has risen by ~143% since 2020: evidently driven by the pandemic forcing us to both a. live basically completely online and b. worry even more about our overall health and where are assets will go after us.
Although online, digital and electronic wills appear to be the same, they actually have significant differences.
- An online will is simply one completely written online – replacing the usual sit-in-office style type with one that begins online, and is eventually printed so that it can be signed.
- An electronic will takes this further and can be completely paperless by being signed electronically. However, only British Columbia has made this legal thus far in Canada; they also complemented this by allowing virtual witnessing due to pandemic protocols.
- Lastly, a digital will is one that takes care of your intangible, online assets such as social media accounts and cryptocurrencies. As such, this is described outside of one’s normal will (since, ya know, it’s important to distinguish between real and virtual assets) and can be created on paper, online or electronically. As long as the will is signed in the presence of two witness, they are just as legally binding as traditional wills.
The latter is certainly one of the newest developments of the few examples given. Since digital assets can be both financially (i.e. bitcoin) and sentimentally (i.e. your 5 million Facebook posts of your dog) valuable, it is important to consider them during estate planning.
Because of the pandemic, many individuals seeking wills had little choice aside from creating their wills in a completely digital manner. However, are these types of documents superior in other ways?
Speaking as a representative of the generation enamored with Elon Musk’s Tweets and NFT Hotel Reservations, I would much rather be able to answer a few questions on my phone and finish the process almost instantaneously as opposed to going through the bureaucracy of in-person office work. Additionally, in these economic times, I would appreciate saving ridiculous lawyer fees (multiplied by inflation!) alongside the extra time taken from my regular daily activities.
However, there are reasons to be skeptical about this approach.
- For one, we are all too aware of the dangers of the internet and how not all websites are to be trusted. Given the generally novel nature of digital wills, how can we really know which websites are verifiable and trustable as opposed to those that are the work of scam artists? With the latter, we can potentially be revealing our most precious assets and the names of those dearest to us (or just our multiple twitter accounts and the revelation of our favourite child).
- Moreover, how likely is it that your electronic will or digital assets get hacked, lost or otherwise tainted? Especially given that wills are public once the owner is deceased, should there be any reaction if they are ‘leaked’ beforehand? How should digital wills account for this?
- If a digital will allows disclosure of digital assets but they cannot – for whatever reason – be accessed, should there be compensation to make up for lost parts of the estate a person was promised? What laws are in place to account for this in traditional wills?
- Can electronic wills be easily changed without the individual’s knowledge? How will one know if this is the case and how to respond?
- Can individuals hold both a valid paper and electronic will? If not, which should have precedence all else equal?
- What should an estate planner or lawyer – in their duty to the client – recommend if a client is insistent on electronic wills but the planner has personal (and practical as per all these questions!) reservations? In other words, who should have the final say in a showdown between a Baby Boomer and a Millennial?
In all, digital wills are definitely an idea to consider given that everyone should have a will in the first place (if you’re about to say that you have no assets, I implore you to open up every social media app on your phone and argue otherwise). However, they are a newer development and merit a sincere cost/benefit analysis as any major decision should. Ensure to think about what would be most convenient, most secure and most comfortable for you when looking at this contemporary estate planning option.