News and Insights
17 July 2019
Digital Wills - should we stick to paper?
With increasing technological advances, should we be moving towards separate digital Wills to cover either our digital assets, or our entire estate?
A Will is a legal document which outlines your wishes as to who will inherit your assets upon death. Upon your death, a Will is ‘proved’ in the Probate Registry, and the executor is given the permission of the Court to begin administering the estate. Depending upon how the will is drafted, it may include your digital presence or digital assets as well as your tangible assets. With increasing technological advances, should we be moving towards separate digital Wills to cover either our digital assets, or our entire estate?
It is evident that more industries are moving forward and using digital databases and digital files within their businesses. Our personal lives are also starting to move towards this arrangement with increasing numbers of online bank accounts and cryptocurrency. In twenty years’ time, the majority of society will have some sort of online presence, whether this is email, social media or online assets of monetary value. In the UK a concept of a digital will is a developing idea. It is a will that does not need to be drafted or witnessed by a lawyer and is drafted, signed and stored electronically without the need for any paper documents or physical signatures.
The current law in Jersey clearly states that a will must follow certain rules for it to be legally binding. Namely, that the Will is written down and is witnessed by two independent witnesses when it is signed (unless it is a ‘holograph’ Will). Here lies the main issue that will be faced by digital Wills; under Jersey law they will fall foul of the necessary formalities. Could this be different in the future? How should digital Wills be witnessed, if at all? Could this be done by fingerprinting or face recognition? There are many questions that must be asked.
A Will covering any tangible assets such as jewellery or cars most certainly has to follow the traditional rules ‘in writing, signed in the presence of two witnesses’ and in the case of immovable assets (freehold property, flying freehold etc) ‘be read aloud to you and witnessed by a qualified witness and another witness’. A digital will covering Jersey assets which does not conform to our law will not be valid.
Even if this law is changed in the future, the purpose and practicability of digital Wills may well be diminished by the user agreements of various online services, for example, some email providers will automatically terminate your account on death which means that putting this in your Will is not necessary. Some email providers will log your account as inactive if you have not logged in for a certain amount of time. Depending upon how you use your email, you may wish to leave instructions that your account be deleted or that an automatic response be sent out for a certain period of time after your death, letting anyone know that you have now passed away. Facebook already provides for a person to be your legacy contact after death which you can set up at any time. Facebook contains personal information which you may feel your family should have and are well placed to deal with.
These ‘default’ positions cannot necessarily be translated directly to online wallets, online bank accounts and cryptocurrency. Digital assets which have a monetary value can cause issues in practice. This is seen in a well-publicised case in America where $64million of Bitcoin cannot be accessed by the deceased’s family, and there is nothing that can be done. Bitcoin is held either on an exchange, online wallet or on a private computer or hard drive. If these cannot be accessed, neither can the bitcoin. Accessing online assets is extremely difficult. A digital Will may be an option in addressing this difficulty as power could be given to a digital executor to access ‘locked’ digital assets by proving the deceased’s digital Will.
Just as with tangible assets, if you had substantial online assets with a demonstrable monetary value, you would surely want them to be dealt with correctly and efficiently. The only way to do this currently, is to include digital assets in your movable Will and keep a record of your online assets, much like you keep a record of your tangible assets through bank statements, paperwork etc.
It is certainly an interesting concept. What makes things difficult is the fact that online services have vastly different rules relating to the closure of account and access to the account by anyone other than the account holder. There are also terms and requirements relating to the ‘key’ or password for online wallets, bank accounts and social media accounts. With this in mind, it is unlikely that a digital Will is going to be a concise document addressing each and every one of your online accounts. The digital Will may end up having to refer to each online account, wallet or platform singularly and providing a different instruction for each in accordance with the user agreement, it could be a long exercise. As an alternative, a regular Will can encompass all of your online assets and accounts, whether they hold a monetary value or not. You can bequeath an online bank account just like a regular account – either in a specific gift, or as part of the residue of your estate.
A digital Will may be an instrument of the future, but it is not an instrument of the present in Jersey. Laws, formalities and agreements will have to change for any form of digital Will to be a practical solution for your last will and testament in Jersey.