Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of the electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.
The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries.
Blockchain Wills explores the potential of this technology to disrupt an area of law that is relatively slow to change. The article is divided into four parts: a discussion of the way in which traditionally rigid rules are gradually but inconsistently yielding to the digital age; an introduction to the E-Wills Act and the states that currently recognize electronic wills; the way in which blockchain technology’s anti-fraud features may be used to authenticate electronic wills; and finally, the argument that blockchain wills are a safer and more cost-effective approach that will broaden access to estate planning. Perhaps it is this aspect of the article that is most important in its contribution—Professor Crawford presents a vision of the future in which an important property right (the ability to dispose of one’s property at death) is no longer abrogated by an inability to afford legal services. This article brushes the dust off a doctrinal area of the law that generally embraces tradition and enthrones formality to present an approach by which a disruptive technology may be transformative in broadening access:
In the not-too-distant future, executing a blockchain will likely may be no more difficult than registering online for a class at the local gym. When that day comes, if enough people have appropriate Internet access, then making a will becomes a far less expensive and difficult task then it currently is . . . as the technology advances, it is possible to imagine that executing a blockchain will could be as simple as opening an app on a smartphone or tablet device. Because the use of complex smartphones is more widespread among young people than the elderly, it may be that those who most wish or need to engage in estate planning would not be quick to adopt blockchain wills.
Professor Crawford explains to the reader the way in which “a distributed ledger’s security as a function of design” works to the advantage of the decedent. The person who wishes to create a will (the testator) would notify the network of an intention to make a will and nominate a personal representative (the key custodian). After the key custodian formally accepts their role with the network, a coded will can be uploaded to the blockchain. A notary public and/or witnesses could confirm with the network (via a cryptokey provided by the testator) that the testator intended this document to operate as a will and they were acting as attesting witnesses. This entire transaction would be recorded as a time-stamped “block” that is available to all users through the distributed ledger. It is unlikely that a bad actor would be able to manipulate or compromise the block, which serves as an immutable record of testamentary wishes that can be amended through a later block but not itself changed. The responsibility would fall upon the key custodian to notify the network upon testator’s death. Crawford argues that although there are administrative issues to untangle, a blockchain will is at least as reliable as a holographic testamentary instrument or a defectively executed instrument saved by a curative doctrine.
Professor Crawford’s article is simultaneously pragmatic and novel. This type of scholarship serves as a departure point for further conversation about risks and benefits to society, so as to facilitate change as the product of thoughtful design. It is this implicit contribution that is noteworthy: blockchain technology promises to disrupt existing legal practices and also allow new paths to form, and with innovation comes the need to frame the way in which legal policy within the law of wills and trusts should react and adapt.
Editor’s Note: Reviewers choose for themselves what to review. Trust and Estates Section Editor Bridget Crawford had no part in the editing of this review.