A.I. and Your Estate Plan

 

This guest post is courtesy of Cameron Wall, Regent Law 3L:

In this modern day and age, individuals have been given a powerful tool with the use of the internet, even more so with the recent advent of A.I. (artificial intelligence). This has become a hot topic in the area of law as well, as many documents lawyers draft are often crafted with the use of helpful A.I. technology, whether it be for proofreading, templating, or for improved research efficiency. However, in a world filled with growing A.I. uses, there are also many drawbacks lurking in the shadows: A.I. providing incomplete or incorrect query searches and information (that have gotten lawyers in big trouble recently who solely rely on A.I. to formulate legal arguments), the advent of “deepfake images”, or the verification imperfections of valid online purchases. These issues also pose a significant quandary for the execution of wills in states that have yet to codify electronic signatures for authenticating valid will executions.

For example, in order for a will to be properly executed in Virginia, it must meet some fundamental requirements: the will MUST be in writing; MUST be signed by the testator (or someone else in the testator’s presence at his direction); MUST be acknowledged in the presence of 2 competent witnesses (witnesses must be of sound mind and over 18 years old) who subscribe to the authenticity of the transaction; and the testator MUST both possess (at the time of signing) testamentary intent and testamentary capacity to execute the testator’s will.

Of course, this raises the question, what about wills that are written down at the last second? Perhaps on a person’s deathbed? Virginia, as well as many other states, allow for two narrow types of “deathbed will exceptions”:

 

1)     A “holographic will”: this type of will without 2 competent witnesses present is only valid if it meets the following requirements: MUST be written purely in the testator’s handwriting, MUST have the testator’s handwritten signature, and the testator’s handwriting MUST be proven by two disinterested witnesses to the transaction in court

2)    A “nuncupative will”: an oral will that MUST be made/given during an active duty member’s last sickness or where they resided for the ten days preceding their death; MUST be proved by 2 witnesses that testator called on someone present to bear testimony that the oral statement was their intended will; and MUST only apply to personal property, not real property (i.e. real estate).

Virginia, along with many other states’ legislatures, implement these type of wet signature requirements (handwritten signatures in ink) to prevent the occurrence of fraud or illegality in executing wills, as these states place high value on protecting testator’s “freedom of disposition” (the constitutionally protected right that allows individuals to determine how their property will be distributed after their death).

With the advent of the internet and online verification processes, there is a noticeable (and somewhat concerning) trend among states (such as Oklahoma, Indiana, Maryland, Arizona, and Illinois, to name a few) which have enacted statutes allowing for the creation and execution of electronic wills, which include provisions for electronic signatures and remote witnessing. While these states offer (perhaps) a more flexible and accessible means to altering a will, by allowing online/remote verification and signature processes, these states appear willing to remain vulnerable attacks on the authenticity of their wills, especially in the event a motivated party is willing to “bend the rules” and alter a person’s will at the last moment to their benefit without having several of the critical safeguards in place to stop them- safeguards that states like Virginia have to prevent crime and fraud (handwritten requirement, physical presence of two witnesses, etc.).

This raises some ultimate questions for a prudent person to consider when drafting a will: when you draft your will one day, will you opt to have it drafted with an e-signature and an e-verification, or will you choose to have it handwritten in person? Will you choose to create your will far in advance of your deathbed? With or without the advice of a lawyer? And finally, at the end of the day, how much do you really care about securing your “freedom of disposition” and determining where your possessions should go after you leave this earth? Good stewardship requires answers.