The Last Will and Testament of our children

Today’s post is nothing more than an opinion, but speculation about the future of the Last Will and Testament. For the most part, the field of law is very traditional. Lawyers are generally speaking slow adopters of technology, and the law itself is painfully slow to adapt to change. But the World we live in is changing dramatically quickly and technology is becoming a core part of most people’s lives. Especially the lives of our children growing up who are always connected, always trying new things, and quick to understand and use new services and technologies. You only have to look at the legal issues surrounding things like intellectual property, content streaming, Wikileaks or even something as simple as taxation to see how difficult it is for the law to tackle the new hyper-connected World. At LegalWills we witnessed an attempt at intellectual property theft with developers on the other side of the World trying to reverse engineer our services and found that legally there was very little we could do about it. The US patent office is coming under increasing criticism for granting patents for technologies that they clearly barely understand and almost every day we see frivolous claims for things like social networking. In fact Twitter has been sued for patent infringement countless times in the last year including this one for mass notifications, Facebook have also had their share. including infringing on “System for creating a community for users with common interests to interact in”. One of the more famous claims was BT’s claim on links on a website !!

But this is all a prelude to the Wills discussion. Today a Will must be written (usually on paper, but in theory written on something is fine like a handwritten Will on a piece of wood) and then signed in the presence of witnesses to become a legal document. So what is the long-term viability of this law? It seems that our children will find writing on a piece of paper a little anachronistic in 20 years time, especially when it’s such an ineffective tool; somebody has to find it, hope that it hasn’t been burned or destroyed, hope that nobody has meddled with it, inserted pages, removed pages, it hasn’t been lost, the version that they have is indeed the Last Will and Testament and not an old version. Writing on a piece of paper is a horribly inefficient way of preparing a Last Will and Testament especially with the tools available to us today. Surely in 20 years time the law will allow for video Wills, Wills that have been stored online in an encrypted format, barcoded Wills, even hologram Wills (rather than holographic Wills). What about a Will written on Facebook or whatever Facebook happens to be in 20 years time?

And how about possessions? a Will today allows you to distribute your physical assets and wealth; but won’t a Will of the future need a beneficiary of your blog, your domain names, your Paypal account, and other online assets. Many services are starting to provide for this, and the term “digital Will” is starting to appear, but this is currently separated from your legal Last Will and Testament. There is clearly a gap in today’s understanding of estate planning that glosses over digital assets. By way of an example; if I hold the usage rights to a domain name like sales.com, I never own the domain and I have to renew it every year or so, but I have usage rights all the time I pay my annual fee. As soon as that payment lapses it becomes available to somebody else even though as an asset it could be worth a million dollars. How do I pass this on to a beneficiary?

We’ve spoken in the past about signatures. It is a ridiculously antiquated way of proving that you are who you are. But today, in 2011, it is considered to be proof that you signed the piece of paper. There are all kinds of cryptographic advances being made to make a handwritten signature obsolete and I would be surprised if our children still relied on scratching their name on a sheet of paper to be proof of their identity.

I have similar thoughts about the swearing under oath; today having a signature notarized gives it more “weight”. In other words, if I sign a piece of paper, it was probably me, if I sign it in the presence of a Commissioner of Oaths who makes me swear in the presence of God that it really is me signing, then it really must be me. I really cannot imagine that this will be the most secure approach that we will have in 2031.

There’s clearly more to the signing than just adding a signature; you have to prove that there was no undue influence, that you had mental capacity, that the Will reflected your own wishes and so forth. But the mechanics of writing on a piece of paper and signing it will not work for our children. A Will also has more to its clauses than just a distribution of assets; it names an Executor, Guardians for children, potentially sets up trusts, has alternate plans. There’s probably too much in there for a person to record into a webcam.

This is clearly an area for our futurists to think about, will our children’s Wills be recorded, barcoded, encrypted and stored in the cloud with a copy of their DNA?  if they are, our laws need to adapt a little more quickly.

Challenging a Last Will and Testament

One of the questions we are regularly asked at LegalWills is “can anybody challenge my Will”. And the short answer is yes, but there are very specific reasons how and why a challenge is likely to be successful or not.

It is not uncommon to see news reports of Wills being challenged; a quick internet search brought up this one and this one . The common feature of these two disputes is that they are a claim based on the mental capacity of the testator (person writing the Will). This is perhaps the most high profile reason for a Will contest, but in general there are only a few ways that a Will can be successfully challenged.

Mental capacity: The person making the Will must understand that they are indeed writing and signing their Will. They should understand the contents of the Will but beyond that they should understand the value and nature of their assets, the nature of their relationships (including which family members they have), and the Will should reflect this understanding. They should also be free of any delusions that may influence the distribution of their property. One important note on this one is that it cannot simply be inferred based on an age; a challenger cannot simply say “he was 97, he didn’t know what he was doing”. There must be some evidence that the individual did not have full “testamentary capacity”.

Undue influence: This is different to mental capacity as illustrated nicely by this court case.  In order to contest a will on the ground of undue influence, it must be shown that the testator did something contrary to his or her true desires. It does not have to be shown that the testator was of unsound mind to prove undue influence. It is a matter of coercion and the main reason why a beneficiary cannot be a witness to the signing of a Will. Undue influence is probably very common but a difficult thing to prove; there are also many shades of influence and so successful challenges depend on the court’s judgement and even then can often be appealed.

Improper execution of the Will: This varies by jurisdiction but in general the document must be signed in the presence of two or three witnesses (ignoring for now the special case of holographic Wills which we discussed in a previous post). Of course, a witness cannot be a beneficiary and in most jurisdictions it goes beyond that; a spouse of a beneficiary cannot be a witness or anybody else who is seen to directly benefit from the contents of the Will. Some jurisdictions require an initial on each page to protect against pages being removed and inserted. There are many variations on this theme including multiple Wills being presented, codicils and amendments to existing Wills, handwritten notes appended to Wills and verbal promises.  It is this type of challenge that is most commonly cited as a reason for not preparing one’s own Will, but as we have previously noted, a Will created using a service such as the one at LegalWills is perfectly valid if signed and witnessed appropriately.

Fraud: This can take many forms from the falsification of documents including forged signatures but also includes situations where the testator made a change to the Will based on misinformation given by a beneficiary.

No provision for dependents: This varies widely across jurisdictions but there are sometimes people who have to be included in a Will. In most jurisdictions dependents must be taken care of, and a spouse has a claim to a part of the estate. And of course we saw that in BC, adult children can challenge a Will if the division of property is considered to be unfair.

So of course, anybody can challenge a Will, but challenges are highly unlikely to succeed unless one of these claims can be proven. The most common reason we hear for wanting to challenge a Will is that the testator verbally promised something which was not reflected in the Last Will and Testament. Sadly, this is highly unlikely to result in a successful challenge even though it can be a very emotional disappointment to the people concerned.

It is important to note that a testator preparing their own Will, or using software to create a Will is not a basis of a challenge unless the challenge is based on one of the preceding situations. So the fear of a Will challenge should not in itself be a reason to steer away from a service like LegalWills which helps you to prepare your own Will.