On digital video wills and the viral Faceapp

By Farah G. Decano

 

DURING the enhanced community quarantine period all over the country, uncertainty about the future and the children’s welfare besieged the minds of most medical front liners.  This is understandable because their exposure to the CoVid-19 Virus was perhaps a hundred-fold more than anyone.  Their fear of catching the dreaded virus was not unfounded.  Thus, preparing for the worse was a responsible thing to do.   Some suddenly felt the need to write their last will and testament.

How easy it would be, if we could just will away our properties digitally.  We only need to get our mobile phones and record a selfie video of our last wishes. If legally valid and admissible, testators, at the point of death, could make their ultimate requests known if they have not made any will yet, or make last-minute amendments to their existing testaments. For the creative individuals, they may hire a professional studio to record a testamentary video and add a little touch of drama or comedy to the distribution of properties.  Imagine a videotaped will complete with musical scoring and surreal backdrop. The named heirs would probably be comforted seeing the testator him/herself explain the will.   It would be like seeing a loved one stating his/her wishes from the great beyond.

Some jurisdictions in the world, however, have hesitations over digital video wills. With proliferation of services promising impeccable video editing skills and the rise of deepfakes, digital video wills are susceptible to falsification and electronic manipulation.   Deepfake is a technology that can clone or manipulate a person’s moving image or voice.  In order to distinguish the fake from the real, courts may require the digital will to undergo an authentication process far more rigid than the usual written will.

All wills, if not most wills, are required to be validated and proven as the last wish of the decedent. But authentication of digital video wills may be very expensive and result to inevitable reduction of the heirs’ possible inheritance. In August 2015, the New South Wales, Australia Supreme Court granted the probate of a video will in the case of Re Estate of Wai Fun Chan [2015] NSWSC 1107. Wai Fun Chan belatedly amended her written will through a video she took of herself while she was in her kitchen. While the heirs did not contest the contents of the video, authentication of the same proved to be burdensome and led to the reduction of the estate for distribution.  Another pitfall of digital video will is the possible unavailability of a system that could play it when the inevitable happens.  Recall the days when we recorded our data in floppies. How many of us here still have computers that could play these disks?

Recently, the use of FaceApp went viral.  It is an application that could mature or shave off decades from our present image or execute gender switch. Many foreign agencies have issued warnings against its use. Likewise, the Anti-Cybercrime Group of the Philippine National Police issued one. By using FaceApp, people are submitting their images to unknown people behind this application. It is a possibility that deepfakes could be used on these submitted images for wrong purposes, such as falsifying a digital video will.

We expect technology to improve in the coming years. Reality will be increasingly difficult to distinguish from virtual experiences.  Will our future heirs be able to identify us from the fake moving images in a digitally-manipulated video when we are long gone?    Can they afford the costly authentication process?

At the moment, Philippine laws recognize only two kinds of wills:  notarial and holographic.  In a notarial will, the testator must sign the will in the presence of three qualified witnesses and the latter to do the same in the presence of the testator and of one another.  A notarial will requires the attestation of the testator and the witnesses and their acknowledgment before a notary public.  A holographic will does not need much formalities.  The law merely requires that it be completely handwritten, dated, and signed by the testator. To be valid, a holographic will does not even need the presence and attestation of any witness.

If we need to compose our will in urgency, don’t bring out your mobile phones.  Just sit down, relax and write down your holographic will.

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