A person's last Will and testament, best to refer to as a Will, embodies a representation of all that a person is worth. In a more profound sense, Wills represent a person's accomplishments and are a measure of one's value and contribution to one's friends, family and society. For this reason, Will's, since first used in ancient Athens,1 have become the ultimate representation of the sanctity of a written agreement, binding on society and the public at large.
Wills, in written form at least, have always faced the pernicious spectre of forgery, falsification and the particular insidious effect greed has on those left behind by the deceased. Signatures can be forged; documents can be falsified, and Wills can be destroyed. A solution to many of the traditional flaws facing Wills may be solved by technology developed within the Blockchain Ecosystem.
The Framework for a Solution
The world is becoming, or, already is, 'Digital'. The assets representing the wealth traditionally amassed are now being held in equally digital forms or, at least, in digital representations of real-world items. Enter the Blockchain: a digital, decentralised ledger of data stored on a trustless peer-to-peer network which allows for the encryption of data.2
Blockchain technology is incredibly secure. The form of encryption used is almost impossible to penetrate. As such, the technology presents the opportunity of issuing tokens on the Blockchain, which digitally represent tradeable assets existing in the 'real world'. The process is referred to as tokenisation. Tokenisation will potentially throw the financial industry on its head and would lead to the development of many benefits.3 Tokenisation will mean that the entirety of a person's wealth and physical assets could be held on the Blockchain. The most valuable benefit is that ownership becomes virtually indisputable.
Blockchain also allows for the development of Smart Contracts which, in simple terms, are agreements where the execution of the contract and the performance of the obligations it represents are carried out automatically using code-run software. This very same process would allow for the development of Blockchain-Enabled Wills, e-Wills or Crypto-Wills which would allow for the administration of deceased estates on an entirely automated basis.
The Practical Impact
The impact of the technology would massively simplify the process of drafting of wills as well as the process of executing or administrating a will and the resulting deceased estate. The Testator would draw up a list of beneficiaries, assets and provide detail as to who-gets-what and what-goes-where. The content of the e-Will is private, and only the beneficiaries and Testator can view the content with the unique 'crypto-address'.
Upon the death of the Testator, the Will is executed automatically and precisely as per the coding of the e-Will, thus eliminating third parties, saving time and reducing legal fee's. The possibility of conflict and dispute is reduced, as is the potential for fraud and forgery. In the event of a dispute, applications developed within the Blockchain would provide for a unique system of dispute resolution.4
A rather significant issue in the Blockchain ecosystem is that people holding crypto-assets and other tokenised assets die without sharing their private key's which means that crypto-assets are locked inside the Blockchain and can't be accessed by anyone. Millions of dollars worth of bitcoin and other assets have been lost in this way and is a tragic loss of value.5 A testator would be able to list their crypto-currencies and all private keys in their e-Will, which would automate the execution process of assets held in the Blockchain.
Applicability to South African Law
The Wills Act 7 of 1953 as amended, which does not recognise an e-Will the format of which has been described above. Further, the potential security that blockchain present is undeniable, but would not provide any legally binding benefit beyond providing an immutable registry of assets.
Next is the Administration of Estate Act 66 of 1965 as amended, ('the AEA') would not allow for a process of digital or automated execution and administration of deceased estates. The AEA requires that the contents of any deceased estate may not be distributed or wound up without first obtaining Letters of Authority or Executorship. This effectively prevents a fully automated process of execution, regardless of whether the Will itself would be recognised as valid.
Although technology is certainly moving ahead a rapid rate, the legal and regulatory framework must be rapidly developed and modernised. Until that time, South African society will not be permitted to fully benefit from the advances being developed on the BlockChain Ecosystem.
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