e-Wills

Automobiles were not invented as a means for thieves to use as getaway cars for bank robbers. In the same way, computers and computer-like devices are put to a variety uses for which they were not originally intended. Through the ages, measures have been enforced to prevent people from making a will other than in a proscribed way. Once paper was introduced into Europe, rules were laid down to make people prepare a will on paper with a specific number of witnesses that had to sign the will or place their mark (when a person could not write), together with the person making the will. The aim is to prevent fraud. However, legislators have had to accommodate those situations where a person is dying, but has not written a will in the proscribed way, such as a soldier that lies dying on a battlefield. Oral wills made by the military can be exempt from the need for the correct form.

Now we have the internet. Legislators have changed the rules relating to the formation of contracts and a range of other transactions relating to every-day life, facilitating the use of computers to conduct business that used to be carried out in the physical world. With respect to wills, though, the rules have remained the same: virtually every country forbids the making of a will electronically. It was only a matter of time when the first electronic will was written, thus disregarding the sage decisions of legislators that always know better than those they rule over.

This short section aims to let the reader know of the cases that I am aware of in relation to the cases involving wills. It is probably not comprehensive, so if you know of a case that has been reported, please let me know.

United States of America, Tennessee

In the case of Taylor v Holt (CA Tennessee Knoxville 18 August 2003 No E2003-00901-COA-R3-CV), Steve Godfrey prepared his last will and testament on his computer and affixed his computer-generated signature at the end, described in the report as his ‘stylized cursive signature’. Two neighbours, Hershell Williams and Teresa Williams, witnessed the will by each signing their name below the signature applied by Mr Godfrey, and dated the document next to their respective signatures. He died approximately one week later (all of these are examples of electronic signatures). Doris Holt, Mr Godfrey’s girlfriend, submitted the will for probate. Donna Godfrey Taylor, Mr Godfrey’s sister, filed a complaint alleging, in part, that the will was not signed and claiming that Mr Godfrey had died intestate. Doris Holt was granted summary judgment holding there were no undisputed material facts and that all the legal requirements concerning the execution and witnessing of the will had been met. This decision was upheld on appeal.

In reaching its decision, the members of the court considered the formalities for the execution and witnessing of a will in Tennessee, as provided for in the Tennessee Code § 32-1-104, and the members of the court prayed in aid the definition of a signature under § 1-3-105 of the Tennessee Code. However, this section refers to a holographic will, not any other form of will. This decision was reached in 2003, after the passing of Senate Bill No. 376 (Public Acts, 2001, Chapter No. 72 Senate Bill No. 376, passed on 9 April 2001 and approved on 11 April 2001) the Uniform Electronic Transactions Act, section 3 of which limits the scope of the use of electronic signatures, and specifically excludes wills. It appears that the members of the court interpreted some of the legislation, but failed to consider all of the relevant legislation, which means this decision cannot be very persuasive, as was possibly incorrect.

Full details of this care are set out in Electronic Signatures in Law, 10.16.

Norway

In case LB-2006-27667 a will had been lost, but a number of electronic copies were stored on the personal computer of the deceased, and also sent as an attachment to an e-mail. It was an accepted fact that the deceased had created a document named a testament in the presence of two witnesses. The deceased also sent a copy of this will as an attachment to an e-mail a third person ‘C’. There was no doubt that the document sent to C was a copy of the testament created and signed by the deceased. The e-mail was found on a backup list for C’s personal computer. In addition, several other copies of the document were found in different places, such as on three different back-up tapes that were found on a hard drive in a safe belonging to the deceased, and also on a hard drive in his safe deposit box at his bank.

The appellate court reached the conclusion that there was no doubt that the deceased created a valid testament. Both witnesses to the testament explained themselves during the appellate proceedings, and gave evidence that after having been asked by the deceased to be witnesses, they stayed together with him when he signed the testament. They did not see the text itself, which the deceased either folded over or hid by placing another paper over it, but they were told the document was a testament, and they saw the title of the document before they signed. They also saw the text above the place they signed. The appellate court found their explanation credible, and the nuances in their explanations are not more than must be expected by witnesses giving independent explanations from memory. No copy of the testament itself was presented to the court.

In the light of this, the appellate court concluded that a valid testament was created, which had not been withdrawn, and that its contents are documented.

The translation into English and full case note by Professor Jon Bing is available in the Digital Evidence and Electronic Signature Law Review, 5 (2008) 137 - 140.

South Africa

In the case of Macdonald v The Master 2002 (5) SA 64, the judge held that a draft will in the form of an electronically stored document, which was stored on a computer hard-disk, can be condoned in terms of section 2(3) of the Wills Act, even if not all the statutory requirements have been satisfied. It is possible to admit such a draft will as valid proof of an existing will. The deceased committed suicide in December 2000, and left in his own handwriting four notes dated 13 December 2000 on a bedside table next to the bed on which he was lying. On of the notes stated that he left his will in a some files in his computer.

The following day the contents of the files were printed on to paper, and the files were then deleted. The Master then refused to accept the files, because they did not comply with the formalities as set out in section 2(1)(a) of the Wills Act. For the will be have been accepted, the applicants had to establish that the file was drafted by the deceased, and that the deceased had died since the drafting of the documents, and the deceased intended the documents to be his will. At appeal, each of these elements were accepted, taking a liberal approach to the provisions of the Act.