Digital will: when technology gets the problem wrong

SJD / Dr. iuris Antonio Tejeda Encinas President of the Euro-American Committee of Digital Law - CEA Digital Law | CEO of Meta Channel Corporation

In recent years it has become fashionable to talk about the digital will as if it were a new legal category in the making, simply waiting for positive law to finish ‘adapting’ to technology. Blockchain is invoked, along with immutability, evidential hashes and smart contracts that would automatically carry out the testator’s last wishes. The underlying diagnosis is always the same: succession law is lagging behind technological reality. That diagnosis is wrong.

Succession law is not lagging behind. It is doing exactly what it is supposed to do. The problem is not that technology has not yet been integrated, but that people are trying to integrate it in the wrong place. When legal systems require solemn formalities, checks on capacity or respect for forced heirship, they do not do so out of legal tradition but in response to very specific conflicts: family pressure, the vulnerability of the testator, the need for predictability in the devolution of estates and the need to reduce litigation after the event.

The core features of succession law – rules that cannot be set aside in certain respects, solemn formalities, limits on freedom of testation – do not reveal an inability to absorb innovation, but a legal policy choice. Testamentary form serves not merely an evidential function but a constitutive one: it does not simply prove the testator’s wishes; it gives them legal shape, subject to safeguards. That is why succession law does not pursue efficiency or automation, but the stability of estates, the prevention of abuse, control of capacity and intergenerational security. That is why it requires qualified intermediaries. That is why it distrusts immediacy. That is why it introduces friction.

Technology, by definition, pushes in the opposite direction.

Here lies the conceptual error that undermines many LegalTech projects in the field of succession: confusing technical immutability with legal validity. The fact that an act is recorded in an unalterable form does not make it valid. A hash does not cure a lack of capacity. A smart contract cannot replace a legal judgment on the testator’s soundness of mind, or an analysis of whether their wishes were freely formed or the result of undue influence. Traceability does not remove the need for formalities where those formalities act as a structural safeguard rather than a mere ritual.

This confusion gives rise to the idea – attractive as a pitch, but legally unworkable – of an ‘on-chain’ will that would produce succession effects simply by virtue of existing in technological form. That model is not disruptive: it is incompatible with the logic of succession law in the civil law tradition. Not because the law is conservative, but because that approach ignores its essential function: to govern transfers mortis causa under conditions of external control, verifiability and enforceability against the world at large.

Meanwhile, the real problems lie elsewhere. Estates containing crypto-assets that the heirs cannot access. Accounts on digital platforms whose control is lost when the account holder dies. Fragmented legislative responses to digital assets, mixing regulatory gaps with partial and even contradictory solutions. None of this is solved by ‘uploading the will to a blockchain’.

Where technology does have a role to play – and where it is useful – is not in creating the instrument of succession but in its infrastructure: enhanced proof of integrity and chronology, auditable custody of successive versions of the testator’s wishes, secure management of digital assets and credentials, post-mortem access protocols under the control of qualified third parties, and the conditional, reversible execution of certain instructions, always subject to a valid instrument of succession. All of this strengthens the system without distorting its nature.

The future is not the digital will understood as a substitute for the legal will. The future is the legally valid will assisted by technology. The difference is not one of labels; it is structural. It forces us to distinguish between the elements of the system that are negotiable and those that perform a non-negotiable safeguarding function.

That is why it is striking that public debate still revolves around whether the law should ‘give way’ to technology. The relevant question is a different one: whether we are designing technology that understands the internal logic of succession law, or whether we are still projecting onto it a simplistic idea of efficiency that works well in a white paper but falls apart as soon as it reaches a courtroom.

Succession law does not need to be disintermediated. It needs better legal and technological intermediation.

Until this is accepted, we will keep seeing solutions that are technically flawless and legally ineffective. And people will go on calling ‘the law’s resistance’ what is in fact the deliberate defence of functions that no technology, however sophisticated, can or should replace.