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17/04/2024. 17:37:51


Por y para profesionales del Derecho

Has the time of electronic will arrived yet?

es analista del Gertrude Ryan Law Observatory

This article tries to show the current situation and the main requirements, advantages and difficulties of the electronic will admitted in the State of Nevada (USA) seven years ago.

Has the time of electronic will arrived yet?

Testamentary law is one of the parts of the U.S. law that has evolved less from its origin, which can be centered in some Acts of English Parliament of the XVI and XVII centuries. Thus, for example, and since then, for attested wills -the most common testamentary form in the United States, even if oral Wills or olographic Wills are also admitted in some States-, it has been demanded that wills be in writing. This requirement has recently been renewed by the Uniform Commercial Code in its Section 1-201 (46) as "printing, typewriting or any other intentional reduction to tangible form." Anyway, despite the amplitude of such terms, courts, from time ago, have interpreted the requirement in writing as a text written on paper.

Currently, this somewhat limiting concept is also seen in other instruments. Thus, despite the fact that the Restatement (Second) of Property recognized some time ago that "a process that produces words on a screen or records those words" is equivalent to the written documents, and although the Uniform Electronic Transactions Act §3 (b)(1) has recognized that an electronic record satisfies all requirements of a written document, this possibility was specifically excluded for wills. Therefore, until now, the meaning of in writing continues referring only to a written paper. This, even though the high reliability degree of some of the new technologies -digital certificates or recorders, for example- exceeds by far the guarantees of the written documents -for that reason they were incorporated in other fields of law: in evidences, in commercial transactions, and so on.

So, a few years ago the State of Nevada admitted a new testamentary way: the electronic will. In fact, in the year 2001 paragraphs §132,119 and §133,085 of the Statutes of the State of Nevada were approved, where the main contents of the electronic testament are contained. So far no other state has developed or assumed a similar testamentary pattern.

The main novelty of this regulation is that it is not required that the will be necessarily in writing; it may be included in any medium that allows for playback (§133,085). The Nevada's legislator argued that if the need for the will to be in writing is to the effect that we can have a permanent and reliable instrument for collecting intentio testatoris and its contents, many of the modern digital media are more difficult to alter than a written document and, for that reason electronic wills have been admitted.

In accordance with the above stated reasoning, the paragraph §133,085 of the Statutes of Nevada says that for recognizing a testament as an electronic will it has to be written and must have been created and stored in an electronic medium. This new support is accompanied by other measures and formalities that can ensure, among other things, its authenticity. Thus, the document must contain the date and the electronic signature of the testator and, at least, an authentication characteristic, that is, a feature of the testator that identifies him as a unique person, either a physical feature or a deliberate act only made by him, and that can be recognized in a digital format. These authentication characteristics may include a fingerprint, a retina scan, a voice or facial recognition or a digital signature.

These electronic wills can be made by all persons who are older than 18 years of age and are sound of mind (§133.985.2). Through them they can dispose of real and personal property, and even establish a trust. However, these electronic wills must be developed in such a way that there may be only one authoritative copy that has to be controlled by the testator or by a guardian appointed by him in the will. And also, any alteration must be readily identifiable and any copies that are made must be identified as such and not as the authoritative copy, that is, the original, unique, identifiable and unalterable electronic record of an electronic will.

So far, only Nevada has given input to this possibility but has not been implemented because the software needed for the recognition of authentication characteristics is the only one available and the required software for authentication of the authoritative copy has not been designed yet. Together with the technical difficulties in order to allow electronic wills, other difficulties associated with this type of wills, such as the problems arising from the cost of the necessary software, the adaptation of the lawyers or the testators to this new testamentary form, the difficulty of having a single standard format, the fragility of electronic resources, or the problem of the constant technological change that can outdate this "new" form even before its application, will also have to be overcome or figured out. In view of this, one can wonder if our society is ready to admit this general pattern will. Without doubt, if not now, we will see in a few years the debate and introduction of this testamentary form.

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