The legal landscape of digital wills and AI: Challenges and opportunities

At present, the most common type of special will is a nuncupative will, which may be made in view of the testator’s imminent death or in other extraordinary circumstances when preparing a standard will is impossible or exceptionally difficult. In such cases, the testator declares their final wishes orally in the presence of at least three witnesses, and these should be written down within a year or validated by the court within six months of the testator’s death.

Embracing trends

The proposed legislative amendment allows for the preparation of a nuncupative will using an electronic device “which can record image and sound on a durable data carrier”. Legislators emphasise the need to follow current global trends, with particular reference to draft Swiss law, as well as English, Welsh, and American case and statutory law. 

The new proposal does not specifically define the “device which can record image and sound on a durable data carrier”, leaving its interpretation to the discretion of common courts. This is especially important considering the lightning pace of technological progress, necessitating a flexible approach to provisions regulating technical issues.

Considering risks

Legislators are fully aware of the dangers posed by electronically created wills, particularly due to increasing access to high-quality AI tools, such as deepfake technology, which allows accurate mimicry of a person’s voice and facial features. For this reason, they have refrained from making a digital will a type of standard will. Instead, the bill classifies it as a type of nuncupative will, meaning that the formal requirements for preparing an oral will, including the number of witnesses, will continue to apply.

For a digital will to be recognised as valid, the data carrier on which the testator’s declaration is recorded should be delivered to the court within one month of the recording being made or within three months of the testator’s death. After examining the data carrier, preparing an official transcript and validating the will, the court will secure and store the data carrier.

Maintaining security

Judging from the current wording of the bill, it seems that a digital will may not be validated if the recording is sent to the court via email, or if the court is provided with a data carrier to which the recording was copied from another device.

For safety reasons, the bill also broadens the scope of individuals excluded from acting as witnesses of the nuncupative will due to a higher risk of fraud. In particular, the new provisions stipulate that representatives and shareholders of legal entities who are granted any benefits under the will cannot act as witnesses.

Ultimately, the proposed amendment balances the embrace of technological advancements with necessary safeguards, ensuring that the integrity and reliability of nuncupative wills are maintained.

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A much sought-after expert, Piotr Bobrowski advises both Polish and foreign entities in dispute resolution cases concerning high-level commercial and employment matters.