Electronic Wills: Why Would Georgia Choose to Delay the Inevitable?

• Publication year: 2021

Electronic Wills: Why Would Georgia Choose to Delay the Inevitable?

Jacob C. Wilson

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Electronic Wills: Why Would Georgia Choose to Delay the Inevitable?

Jacob C. Wilson^*

I. Introduction

It was a late on a Tuesday night. It had been five grueling days since Max had the opportunity to spend time with his thirty-five-year-old daughter, Kate. Max was looking through Kate's laptop and kept looking at all her photos documenting her travels and life experiences from their annual trip to Destin, Florida to the day she got her first job after college. Kate trusted Max more than anyone, so he was the only one who knew Kate's password. Kate even kept the password hidden from her husband of five years, Jim. Kate was an avid writer and often kept track of her feelings and experiences through her journal typed on Microsoft Word. Max pulled up Kate's last typed journal entry before she succumbed to illness dated March 21, 2021. Kate's entry was largely influenced by her perception of Jim's disdain for her parents and that Jim wouldn't maintain contact with them. More importantly, Kate wrote "I wish that Jim would give my father back his grandfather clock, collectible coin set, and old cameras if I don't make it, but deep down, I know Jim won't. What should I do?" Max continued reading:

"Dad, I knew that if this day were to come that you would read through my journal. So, if you are reading this, then I want you to know that I want you to have our family heirlooms that you gave to me when I first moved out. That means, I want you to have the grandfather clock, collectible coin set, and collection of old cameras in order to preserve our family's memory."

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Kate didn't prepare a valid will, so this is all she left as to who she wanted to possess these items. No one thought the illness would take a turn for the worse like it did, but her immune system was so weak that she was unable to go out in public for the past year. This document now only served as a reminder to Max of what Kate wanted. Upon meeting with a lawyer shortly after reading through Kate's journal, the lawyer informed Max that under Georgia law, since Kate died without creating a will then under Georgia Intestacy Statutes everything would go to her husband Jim including the family heirlooms mentioned in Kate's journal.

Max knew this isn't what Kate wanted. In fact, almost everyone in town knew the family heirlooms were treasured by Max and that Kate wanted them to remain in the family. Kate was from a small rural town where the only businesses within 30 miles of her home were the local Piggly Wiggly and the lumber mill where majority of the town was employed. Kate went to a small high school and graduated with a class of twenty-five (25). Everyone in her class, and even below or above her class, knew how much she loved her dad and the connection they shared. Family disputes as well as dreams were relatively known by everybody in the small, thousand-person population town. Very few things were kept secret unless not a single soul was told.

Kate was not the quiet type. She was quite vocal and always sought to express her opinion and viewpoint. On one occasion, Max was informed by Kate's brother, John, and his wife, Rose, while the three were Facetiming, that she wanted Max to have the family collectibles and that she dictated so in her journal in case something happened. Kate asked that John and Rose also make sure that Max reads her journal to find this and that they continue to tell Jim that Kate wanted Max to have these collectibles. Despite this strenuous conversation, John and Rose thought this made sense given the respect that everyone in town gives to an individual's wishes.

Jim was new to town and brought in to help manage the lumber mill. Jim was not fond of Kate's family and tried to avoid the family at all costs including holidays. There was not a possibility for Max to get back the family collectibles he gave to Kate, because Jim always told Kate how much they could make if they just sold those "useless collectibles". On top of that, Jim was indifferent toward Kate's family. Now Max won't have those family collectibles as a reminder of Kate. Instead, they will remain with Jim until he chooses to sell the collectibles for extra cash. Max thinks his situation is an anomaly, but he isn't alone in this experience. In fact, a recent study reveals that roughly 55-percent of individuals die

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intestate.¹ Millions of individuals likely share stories that are similar to Max's experience.

Life is already stressful and complicated enough, why not create easier and more accessible avenues for individuals to pass on personal or real property to loved ones when unprepared for disastrous circumstances? Many people in situations like Kate mistakenly believe that they can only create a will through an attorney, but do not have the accessibility. Current Georgia statutes require physical witnessing, but as noted in Kate's story, she was unaware of this requirement and could not do so due to her immune system. Georgia must react and accommodate to the wishes of individuals like Kate. It would be natural for many individuals in the United States to believe that digital communications are valid as legal instruments.

According to a recent study on small businesses, over 90% of all small businesses use digital tools for communication purposes.² Additionally, many people electronically transfer their finances every day entailing thousands or even millions of dollars being transferred with the click of a button. Kate's collectibles have financial as well as sentimental value, so why would Georgia permit millions of dollars to be transferred electronically, but not allow Kate's wishes? Kate documented her wishes on her computer that only she and her father have the password to, and several others were informed of her wishes in her electronic journal. It's time that Georgia catches up and helps pave the way for hundreds of thousands of its citizens who share stories like Kate — for the sake of current and future generations.

This Comment assesses the changes in Georgia's laws regarding the formalities of wills and analyzes how acceptance of an electronic will in Georgia would be an acceptable response to the changing times. Part I analyzes how Georgia's wills statutes have changed and discusses how the wills law came into fruition today. Part II analyzes the Electronic Wills Act, states that have passed statutes considering the Act, and a review of Georgia's legislative approach to the Act. Part III reviews an in-depth analysis of (a state) that has passed the Electronic Wills Act that operates in a strict compliance jurisdiction. Part IV analyzes two different areas of the law where Georgia was one of the last states to react and how this delayed reaction represents a fruitless opposition to the

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inevitable. Thus, this Comment will emphasis the necessity for Georgia to legalize electronic wills.

II. HISTORY OF WILLS AND CURRENT STATUTORY REQUIREMENTS IN GEORGIA

Like other states, Georgia has a created a system of private succession concerning the disposition of an individual's personal property. Simply put, individuals who wrote and amended the law necessarily reacted to the change in technology and property rights out of necessity. The United States memorialized the inherent value of preserving one's personal property by putting so in the federal and state constitutions. As an example, part of the Georgia Constitution provides for the protection of private property by stating, "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."³ Although this phrase is referring to the government's ability to acquire an individual's private property, this is an example of Georgia's aim to secure the right for its citizens to hold and dispose of their private property to their liking.⁴ To provide a more in-depth understanding of how Georgia law has reacted and changed throughout time, this section will focus on the evolution of Georgia's law that controls the disposition of an individual's personal and real property, and Georgia's current statutory requirements.

The system that serves as the basis of Georgia wills formalities is largely influenced by English law. Georgia's foundation for its wills formalities began with the Statute of Frauds, which is a common law concept that requires certain agreements to be in writing in order for them to be binding on the parties.⁵ In 1784, Georgia passed an Act that adopted England's laws regulating the enforcement of proper wills, which allowed for nuncupative wills, or wills made orally, to be made.⁶ This enactment by the Georgia legislature came with slight variations to fit the needs of Georgians.⁷ Prior to the Act of 1852, Georgia required that wills devising real property to be in writing, signed, and attested by three witnesses.⁸ At that time, a will devising personal property was treated differently than real property and was governed by the Statute of Frauds, which meant it was not required to be signed or attested by witnesses⁹

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Notably, these requirements were drastically altered by the Act of 1852, and since that Act, an instrument that expresses the intention of the testator disposing of real and personal property is not valid if not properly attested.¹⁰ This Georgia Act as well as a number of other states enacted similar statutes that were influenced by England's Wills Act of 1837 and later, the Wills Act Amendment Act of 1852.¹¹

In the mid-18^th Century, individuals in England saw the need for uniformity in probating wills, and created the Act of 1837, later amended by the Act of 1852, to set about to bring uniformity and structure to the execution of wills.¹² It changed a number of formalities for wills, including but not exclusively, where both real and personal property are subject to the same standards; at least two...