Are Electronic Wills Valid?
A probate court in Ohio recently dealt with this issue and ruled, yes, electronic wills are valid. However, that would not be the case in all jurisdictions nationwide including Tennessee. In fact only one state, Nevada, has officially codified requirements to create a valid digital will.
In the Ohio case a critically ill patient in a hospital had his brother draft a will for him on his Galaxy tablet citing pen and paper were not available. The patient signed the will using the stylus and his brothers served as witnesses.
While it was the first time in Ohio a judge has been asked to decide on the use of such an electronic device Ohio state law allows for type written or hand written wills to be valid. This served as the basis for the ruling. In Tennessee the statute requires that a holographic will to be in the testators’ own handwriting.
TENN. Code. Ann. § 32-1-105; No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two witnesses.
In this time of technological advancements and the wide spread use of technology in society it is inevitable that states will soon have to address the rise of digital wills. The major benefit of an electronic will is potentially convenience and storage but the variability of software and hardware actually increases the risk of inaccessibility in the future. However, fraud is still the greatest potential problem. Authentication issues can be addressed by incorporating a separate biometric component into the digital will as is required in the Nevada law. Unfortunately, widespread availability of such software has not been developed.
Wills are important part of an individuals estate plan and compliance with the prescribed conditions is essential to the execution of a will. While there is no requirement that a will be drafted by a lawyer it is helpful in ensuring final wishes are clearly and effectively communicated in compliance with state laws. The bottom line is just because the technology exists for our use and convenience the application of that technology may still require professional guidance.