Audiovisual Wills: A Contemporary Approach to Testamentary Formalities

Abstract

Despite several differences between civil law and common law jurisdictions, today’s modern succession law is based on Roman law, which requires strict formal rules for will-making. However, a historical perspective demonstrates that there is a slow but continuous shift away from strict formalism. In fact, form’s superiority over substance is diminishing, and testamentary formalities are mellowing. Yet legislative intervention is compulsory to ensure that succession law is in harmony with the latest technological developments of the era. We argue that de lege ferenda, legal order should allow testators to execute audiovisual wills through electronic means of communication. Within this stance, the option of audiovisual wills should not be restricted to cases of emergency. Everyone should be allowed to make an audiovisual will at any time, and such wills should not be automatically terminated if the testator is still alive after a specific time following the execution of the will. However, one needs a feasible and secure system that will ensure that audiovisual wills bestow the functions of testamentary formalities. Accordingly, we propose that each state create a digital registry. Testators could upload their audiovisual wills to such a registry, and these wills could be shared directly with competent public authorities.