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Indiana Law Journal

Document Type

Article

Publication Date

Summer 2020

Publication Citation

95 Indiana Law Journal 735 (2020)

Abstract

Blockchain technology has the potential to radically alter the way that people have

executed wills for centuries. This Article makes two principal claims—one

descriptive and the other normative. Descriptively, this Article suggests that

traditional wills formalities have been relaxed to the point that they no longer serve

the cautionary, protective, evidentiary, and channeling functions that scholars have

used to justify strict compliance with wills formalities. Widespread use of digital

technology in everyday communications has led to several notable cases in which

individuals have attempted to execute wills electronically. These wills have had a

mixed reception. Four states currently recognize electronic wills. The Uniform Law

Commission approved a Uniform Electronic Wills Act in July 2019, so it is likely that

even more states will permit these documents. This Article identifies some of the

weaknesses in existing state statutes and the model law and considers how

technology can address those problems.

This Article explores how blockchain, the open-source technology underlying

cryptocurrency like Bitcoin, could be harnessed to create a distributed ledger of wills

that would maintain a reliable record of a testator’s desires for the post-mortem

distribution of estate assets. These blockchain instruments easily could qualify as

wills under existing substantial compliance doctrine or the Uniform Probate Code’s

harmless error rule. Blockchain wills would serve the true purpose of wills

formalities—which is to authenticate a document as the one executed by the testator

with the intention of having it serve as the binding directive for the distribution of

her property. By uniting blockchain technology with the innovations of the best

aspects of electronic wills legislation, a blockchain will could serve as a reliable,

authentic, and secure record of a decedent’s last wishes for disposition of her

property.

This Article’s account has important implications for the legal profession. As

financial institutions and governments have moved to develop blockchain-based

solutions for the delivery of services, lawyers have lagged behind. In some legal

circles, attorneys have become interested in “smart contracts” and the possibility of

using blockchain to create a more accurate record of real property deeds. But most

lawyers have not yet invested the requisite time and energy needed to understand

how blockchain works and to develop systems that would use the technology

effectively. By demonstrating how blockchain could make wills cheaper to prepare

and less susceptible to tampering, this Article also points to multiple other uses for

blockchain in the legal profession, including authentication of chain of ownership,

record-keeping, and drafting of all kinds. Even though lawyers have been slow to

harness blockchain’s potential, the technology holds the promise to transform the

practice of law into a form that will be unrecognizable to today’s lawyer.

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