wills confidentiality
To what extent can a testator keep their will secret until the day comes?
<p>Bob wants as few people as possible to know the contents of his last will. Especially he doesn't want the heirs to know it until the day comes, as well as those who would assume that they would be the heirs.</p>
<p>Bob also prefers the people who keep the will (if any) to not know its contents, neither the witnesses for his signature on the will. Although this seems to be more difficult to accomplish, I wonder to what extent it is possible (barring any will-keepers who would secretly open the sealed envelope to read the will, and then seal it again).</p>
<p>In the today's digital era, are any modern technologies/services legally allowed to keep wills facilitating the wanted secrecy?</p>
<p>(Any jurisdiction you can answer about)</p>
<p>Closely related: <a href="https://law.stackexchange.com/questions/11298/can-terms-of-a-will-be-legally-kept-secret-before-filed-in-court">Can terms of a will be legally kept secret before filed in court?</a></p>

<h2>100%</h2>
<p>The testator writes the will. The witnesses watch them sign it and then sign themselves without reading it. Pop it into an envelope and lodge it with you lawyer, or put in the safe, or the bank, or wherever. Easy peasy.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p><strong>Basic Requirements</strong></p>
<p>A will of a testator (i.e. person who writes a will) who is not yet deceased, must be revealed to two witnesses at the time of signing. The testator cannot refuse to disclose it to the witnesses who need not (and should not) be heirs or devisee of the testator. The witnesses are under no particular duty to scrutinize its content closely while witnessing it, although better practice is for witnesses and the testator to initial each page.</p>
<p>It would be extraordinarily unusual, but not improper, for a testator to have the witnesses sign non-disclosure agreements related to the will signing that cease to be effective upon the testator's death.</p>
<p>In the alternative, <strong>a holographic will can be kept entirely secret because it does not require any witnesses. A holographic will is generally valid if it is entirely or substantially, and in all material portions, written in the handwriting of the testator, and it is signed by the testator (ideally, it should be dated as well).</strong> Not even its existence need be disclosed to anyone so long as arrangements are made that insure that it is promptly discovered after the testator dies.</p>
<p>Holographic wills are a real thing, even in the modern era, even though they are uncommon. I've probated perhaps a dozen over them over twice as many years.</p>
<p><strong>Options That Can Be Dispensed With</strong></p>
<p>There are procedural benefits in the probate process to also having a notary notarize the signatures of the witnesses and testator with certain boilerplate safe harbor language, which makes a will &quot;self-proving&quot; (i.e. admissible to probate without witness testimony) in many states, but this is strictly speaking optional.</p>
<p>A will can be lodged with a public official in some cases prior to death, but this is also optional and is quite uncommon in the U.S.</p>
<p>There are additional procedural benefits of having an attorney make certain representations about a will in a certificate that will make it an &quot;international will&quot; but this is also optional.</p>
<p><strong>No Other Duties To Disclose Prior To Death</strong></p>
<p>Otherwise, there is no duty to disclose the contents of, or existence of, the will to anyone. There is also no obligation to make any copies of the will.</p>
<p>But, of course, if no one can find the original will (not a copy, a will is like a dollar bill and a copy is not as good as the original) after the testator dies, then it can't be admitted to probate and is basically worthless.</p>
<p><strong>Obsolete Exceptions</strong></p>
<p>Until fairly recently, Louisiana law was an exception to this rule, and a testator could put the testator's will in a sealed envelope, present the sealed envelope to seven witnesses and attest to them that it contained the testator's will, and the instrument in the envelope that was the will itself would not have to be disclosed. This was called a &quot;mystic will&quot;. But, Louisiana discontinued this distinctive non-common law practice in the late 20th century.</p>
<p>These rules have been the same, for the most part, since before the Revolutionary War in the United States in common law states, apart from Louisiana, although Maine and Florida have in some historical periods required three rather than two witnesses.</p>
<p><strong>Technology Doesn't Help And Can Hurt</strong></p>
<p>This rule has not been influenced by technology in any meaningful way pertinent to Bob's objectives in the question. Indeed, the lower technology method of writing your own will by hand, rather than typing it or having it types and merely signing it, is the most private option.</p>
<p>Attempting to use an &quot;electronic will&quot; is an exceedingly risky option that has a very low chance of being effective at death, although there have been some outlier cases where this has been allowed. Of these, a handwritten with a stylus will that merely substitutes &quot;electronic paper&quot; for dead tree paper, is most likely to be recognized, but even that has a grave risk of recognition because you are presenting a copy rather than an original will when you do so.</p>
<p>It can also be quite hard to keep any electronic file that is backed up, or on a machine connected to the Internet, absolutely secret.</p>
<p><strong>Answer Only Applicable To The Common Law Tradition</strong></p>
<p>Most of these rules draw heavily on the common law tradition, however, and I am not confident of their applicability in Puerto Rico, or in other civil law countries or countries other than civil law countries that do not have a common law legal tradition.</p>

<p><a href="https://harvardlawreview.org/2018/04/what-is-an-electronic-will/" rel="nofollow noreferrer">This article</a> surveys common-law law regarding electronic wills. An electronic will is obviously the type of document which is easiest to keep secret, the problem is that such a will may not rigorously comply with the formal requirements for a will in that jurisdiction. The probate doctrine of substantial compliance might override the ones that relate to electronic vs. paper medium in the testator's jurisdiction. The <a href="https://law.justia.com/codes/hawaii/2016/title-30a/chapter-560/section-560-2-503" rel="nofollow noreferrer">Uniform Probate Code 2-503</a> says that a writing is treated as though it had been in compliance with the formalities if the proponent &quot;establishes by clear and convincing evidence that the decedent intended the document or writing to constitute&quot; the decedent's will etc. Outside the US, courts are somewhat more willing to accept electronic wills. The major drawback is that this imposes a substantial burden on the proponent of the will (thus, indirectly, on the testator), owing to the substantial evidentiary hurdles that must be overcome. In the South African case
<a href="https://en.wikipedia.org/wiki/Macdonald_v_The_Master" rel="nofollow noreferrer">Macdonald &amp; Others v The Master &amp; Others</a> 2002 (3) SA 64 (N), the court determined that only the deceased could have drafted the document, so it was found to be valid. On the other hand, in <a href="https://archive.sclqld.org.au/qjudgment/2011/QSC11-243.pdf" rel="nofollow noreferrer">Mahlo v. Hehir</a> (Queensland) the court rejected an electronic will because</p>
<blockquote>
<p>I am not satisfied that Dr Mahlo intended that the electronic document
should form her will. The essential reason for that conclusion is that
she knew that in making a new will, she had to do more than type or
modify a document upon her computer. She understood that she had to
sign it. As I have found, she did sign a paper document which she
described to her father as her new will</p>
</blockquote>
<p>meaning that you cannot willfully flout the formal requirements of a will. But in <a href="https://www.caselaw.nsw.gov.au/decision/54a637ad3004de94513d9a45" rel="nofollow noreferrer">Yazbek v. Yazbek</a> (NSW) an electronic will was admitted to probate, despite formal defects. W.r.t. US case law, the currently best outcomes are summed up in <a href="https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2019/september-october/ready-or-not-here-they-come-electronic-wills-are-coming-a-probate-court-near-you/" rel="nofollow noreferrer">this ABA article</a>, where two such wills were admitted (in Ohio and Michigan).</p>
<p>So there is the possibility for an absolutely secret electronic will, but no guarantee that such a will would be admitted.</p>
