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rofessor Bridget J. Crawford has written a very interesting paper, “Blockchain Wills,” that’s really two and a half papers in one. First, the paper provides a thorough review of the case law, both in the United States and Australia, which creates the background for electronic wills and discusses the statutory responses, thus far, to that case law. Although many of us think of the typical case as being a “will on a tablet” as in In re Estate of Javier Castro,1 the world is a big place, and we’ve already seen many other fact patterns. To illustrate, a witnessed will with an electronic signature in cursive font was admitted to probate in Taylor v. Holt2 and, in Australia, an unsent text message that read like the will of an unfortunate testator who typed it and then committed suicide was permitted to be probated by the court in Estate of Yu.3
Prof. Crawford then shifts gears to explain blockchain technology and the nascent uses of that technology in the legal field, as well as some potential uses, such as to simplify deed recording and record preservation. The article explains the public aspects of blockchain as a public ledger with identical copies maintained by multiple parties, which contains a record of all transactions associated with the ledger, each identified by a private key so that only with the key could a transaction be identified as being associated with a particular person. For instance, the article considers blockchain as a replacement for the current means of recording deeds:
The existence of a ledger for digital transactions could address centuries’ long legal problems. If there were only one cryptokey associated with each parcel of real property, then possession of the cryptokey—not registration with government officials—would be best evidence of title. There would be no race to record title, and the way property ownership has been tracked for years would be transformed into a virtual system almost unrecognizable to preceding generations of lawyers. [footnote omitted]
The purpose of the article is to suggest that blockchain can play an important role in making electronic wills more popular with practitioners and the public by helping to solve various problems that electronic wills present. I described this portion of the article as a “half” not to be derogatory but to say, as does Prof. Crawford, that it’s the beginning of an interesting discussion but not at all the end. What sorts of problems? In particular, problems with identifying the testator, ensuring that the testator took the task of writing a will seriously and ensuring that the will hasn’t been tampered with. In Prof. Crawford’s vision, a blockchain will would still be witnessed and in text, although she recognizes both of those conditions might be relaxed at a future point.
Today we think of the traditional will as being in writing, on paper and signed by the testator before two witnesses and a notary to be self-proving—we needn’t have the witnesses testify in the probate court. We should remember that we can’t prove that any of these elements are truly necessary to create a clear expression of a testator’s testamentary intent. These elements rely on our intuition. For instance, paper is a convenient medium for documents in writing, but we know that fenders, barns, walls and many other surfaces accommodate writing. To allow an electronic medium—a tablet, smartphone or computer—isn’t a stretch. What about the requirement of “writing” itself, as opposed to audio or video recorded spoken words or symbols like
emojis? To date, that’s been a stretch too far in most cases, perhaps because our intuition suggests that written text is more thoughtfully and accurately created and isn’t a significant burden for most potential testators. Over the next generation, our intuition may be tested. Perhaps the effort required to create a blockchain will—not in text—could convince us that the testator took the task seriously, and perhaps new technology will add clarity to audio and video testamentary expressions.
Why witnesses and why a notary? Our intuition is that they make fraud and undue influence somewhat harder to accomplish. The secretaries in a lawyer’s office don’t remember the specifics of the many testators whose wills they witnessed, but they can detect lack of capacity at the macro-level and, when others are excluded from the signing, provide at least a minimal check on undue influence. To date, in most states, legislators and the bar have concluded that those minimal benefits outweigh the undoubted inconvenience and expense created that deters some, or many, we don’t really know, potential testators from creating wills at all.
Prof. Crawford believes, as do many others, that it’s time for us all to probe our intuitions. As is so often the case, the question is how rapidly. The Uniform Law Commission (ULC) in its newly adopted Electronic Wills Act (the E-Wills Act) determined that wills must be text when executed—no oral or video wills, although a testator may create text through dictation so long as the words are transcribed to text when the will is executed—but abolished the requirement of paper by allowing an electronic medium. Further, the E-Wills Act preserves the requirement of witnesses (and a notary for self-proving purposes) but allows them to be remote and present by video. Anticipating that this approach will be controversial, the ULC drafted the E-Wills Act so that it may be adopted with or without allowing remote witnessing. Whether states adopt remote witnessing will tell us, perhaps, how rapidly the requirement of witnesses themselves may be done away with.
The E-Wills Act struggles with the revocation of an electronic will, and here blockchain doesn’t seem to help. Of course a subsequent will can revoke an electronic (or presumably a blockchain) will. But, a paper will may be revoked by destroying the original. There’s no original of an electronic will; the E-Wills Act allows a physical act to revoke an electronic will—for instance, deleting an electronic will perhaps accompanied by an email to someone saying, “I just revoked my will”—but the meaning of such revocation will have to be worked out by testators and courts over time. Blockchain is designed so that it can’t be revoked. How important is that difference? Does it matter if a testator creates a will that can’t be quickly—for instance, without witnesses—revoked? These are questions for us all to consider. Prof. Crawford has done an admirable job in teeing up the discussion.
Endnotes
1. In re Estate of Javier Castro, No. 2013ES00140 (Lorain Cnty, Ohio Ct. Comm. Pl. June 19, 2013).
2. Taylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003).
3. Estate of Yu, [2013] QSC 332 para. 9.