E-Libing and Cyberwills

Living in a fast-paced world where technology constantly changes in rapid succession, where online purchases are simply a click away, and where business deals between parties three continents apart are concluded virtually, it comes as no surprise that Philippine legislators seek to move with the times, hoping to respond to these dynamic changes by enacting laws the likes of E-Commerce Act (R.A. 8792) and the Rules on Electronic Evidence (A.M. NO. 01-7-01-SC.).

Corollarily, the question that arises is whether the advent of the laws on electronic evidence gives rise to a new breed of wills --- electronic wills. Does the existing legislation affect the formal validity requirements of our present provisions on wills? More specifically, will electronic signatures be sufficient compliance with the signature requirement in notarial and holographic wills?

In my opinion, it can be said that the Civil Code, as supplemented by the E-Commerce Act and the Rules on Electronic evidence, allows the execution of electronic wills. There is no longer any need for our legislators to amend the existing laws to expressly provide for electronic wills as was done in the state of Nevada.[1] Despite the laws admitting electronic wills, electronic wills have not been implemented because the software necessary to meet the requirements has not yet been developed. “Technological and structural systems for preserving software to allow access to the documents for many years or decades in the future have yet to be implemented in state court probate systems.[2]” In the absence of such, the danger of obsolescence of technology to authenticate digital signatures abound.

The foundation for electronic wills has been laid down by our existing laws. What is necessary are the implementing rules and regulations to further delineate and give life to the spirit of the law. Unless and until the rules on electronic notarization are drafted and approved by the Supreme Court, electronic notarial wills will never become a reality.

Even if the necessary software were available, people would still be reluctant to execute electronic wills because of the prohibitive costs they entail. Admittedly, electronic wills have so much promise. But with the current fragility of the electronic storage medium and lack of necessary software, an electronic will remains nothing but that --- a promise.

Entry # 3

Diane Cecilia S. Yu

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[1] Nev. Rev. Statute § 133.085 (2006).

[2] US Dept of Commerce, Electronic Signature: A Review of the Exceptions to the Electronic Signatures in Global and National Commerce Act p. 11 [June 2003].