October 15, 2018

The Future of Electronic Wills

by Dan DeNicuolo

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 5.)

While documents electronically signed and stored have become more widely accepted in the legal community, States have been extremely reluctant to push this new-age technology form of documentation to the more archaic field of Wills, Trusts and Estates.

    The Uniform Electronic Transactions Act (“UETA”) was proposed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999 in an effort to create nationwide rules for electronic transactions. It has since been adopted by 47 states and the District of Columbia.
However, the Act “does not apply to a transaction to the extent it is governed by a law governing the creation and execution of wills, codicils, or testamentary trusts.” “Uniform Electronic Transactions Act,” National Conference of Commissioners (1999). Efforts have also been made to integrate legal documentation with technology on the federal level.
    

    Congress enacted the Electronic Signatures in Global and National Commerce Act, L. No. 106-229, 114 Stat. 464 (2000) (“E-sign Act”) to allow the use of electronic records and signatures in interstate commerce. E-sign Act’s Section 102(a)(2)(A) does however allow for states to modify, limit or supersede the general electronic signature rules of the Act through statute of which “specifies the alternative pro- cedures or requirement for the use or acceptance (or both) of electronic records
or electronic signatures…” But section 103(a)(1) of the Act excludes “a statute, regulation, or other rule of law governing the creation and execution of wills, codicils, or testamentary trusts.” 
    

    Thus in almost every state, wills and codicils have remained as more traditional legal documents requiring old fashioned pen-to-paper signatures. Currently, Nevada is the only state that has adopted electronic wills capable of being signed electronically by their testators.’ See NRS 133.040.


    That adoption occurred 16 years ago. But a number of states now appear to be attempting to follow with legislation of their own. In early May the “Florida Electronic Wills Act” passed the Florida legislature. HB 277: Florida Electronic Wills Act, F.L. Legis., (2017).  While it seemed Florida would take the lead in bringing probate law into the computer age, the effort ended on June 26 when Governor Rick Scott vetoed the bill. The bill had sought to allow testators to sign wills or trusts electronically--simply by typing his or her name; it did not require a digital signature secured by
a third party encryption service. But the stan- dard two-witness requirement would have remained intact, requiring testator’s two witnesses to sign electronically.

    Despite the efforts of forward-looking legislators and the global pressure
to embrace new technology, it is by no means certain that electronic wills will quickly gain popularity.

Had it not been for Governor Scott’s veto, a testator would have been able to sign along with his or her witnesses via videoconference, as long as either an attorney or notary was present.


    In his veto letter, Governor Scott expressed the importance of finding “the right balance between providing safe- guards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible.” (See http://www.flgov.com/wp-content/uploads/2017/06/HB-277-Veto-Letter. pdf). Ultimately the governor did not believe the bill struck this balance. His veto letter states three main reasons be- hind his decision: (1) the bill fails to ensure authentication of the identity of parties to the transactions; (2) it allows nonresidents of Florida to bring their wills into Florida probate
potentially overburdening Florida courts and com- plicating matters in the testator’s non e-will accepting home state; and (3) the reasoning behind the legislature’s decision to delay the implementation of remote witnessing and nota- rization. The legislature decided to delay the bill until 2018 so it could address these concerns during the next legisla- tive session. Governor Scott did not shut the door entirely on electronic wills. Rather, his veto letter stated his concern that the bill in its current form is imperfect; he encouraged lawmakers to correct the outstanding
issues during the next session.

    Four other states, Arizona, Indiana, New Hampshire and Virginia all introduced bills this year seeking to vali- date electronic wills in their respective jurisdiction. How- ever none of these bills passed into law.

    A summary of the approaches by the four states:


Arizona: SB 1298 was introduced in January 2017. Though it failed to gain much steam, it sought to autho- rize the practice of creating and signing of both wills and trusts electronically. While there was no mention of digital signatures in the Arizona bill, it stated wills and trusts may be e-signed. Authentication was not to be as simple as a signature however. The bill’s “Authentication Method” mandated that a form of government ID be provided by the testator. Furthermore, the testator would have had to provide biometric identification such as a fingerprint. Testators could have foregone biometric authentication and authenticated through more technology driven means including Public Key Infrastructure and Knowledge-Based Authentication methods. SB 1298: An Act amending Title 14, Chapter 2, A.Z. Legis., (2017).

Indiana: Also introduced at the beginning of this year, HB 1107 provided that citizens of Indiana could create electronic wills and trusts of which were signed elec- tronically. It also sought to authenticate electronically created and signed living wills and health care powers of attorney. HB 1107 required further authentication similar to the requirements of Arizona’s bill (the lone exception being that video recordings of the testator would have also been a form of additional authentica- tion available to Indianans). But like Arizona’s bill,  the bill in Indiana also failed to get off the ground and did not pass through either house prior to the legisla- tor’s 2017 adjournment. HB 1107: A Bill for an Act to amend the Indiana Code concerning Probate, I.N. Legis., (2017).

■   New Hampshire: The New Hampshire Electronic Wills Act (SB 40) as written was far less stringent on authentication. The bill only required that the will be e- signed by the testator and then e-signed by a notary or two witnesses. These signings were to be also capable of being done by
means of live video and audio confer- ence. SB 40: An Act relative to electronic wills, N.H. Legis., (2017).

■   Virginia: HB 1643, sought to validate and regulate e-wills by amending the Virginia Code Title 64 to make Virginia electronic wills valid once e-signed by the testator and also e-signed either by notary or two witnesses. The e-will in Virginia would then have been required to be placed into the control of a qualified custodian who must have been in possession of visual records which proved the identities of all signers of the will--all provided contemporaneously with the actual signing of the document. HB 1643: Electronic Wills, V.A. Legis., (2017).

    Though each of these four states considered bills in- troduced this year, electronically signed wills has already shown up in probate court. In the Tennessee case of Taylor v. Holt the testator drafted his will on his personal com- puter and signed it using a cursive-type computer font dis- tinguishing the signature from the rest of the will’s writing. Taylor v. Holt, 134 S.W.3d 830, 831 (Tenn. Ct. App. 2003). As written, the will left the entirety of the testator’s estate to his girlfriend. Upon the testator’s death, his sister, who would have been the sole intestate beneficiary, disputed the will as being defective due to a lack of proper signing. Ten-
nessee defines the term signature as “ any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record.”

    The Tennessee Court of Appeals found that the will had been sufficiently signed to satisfy probate. This ruling could be interpreted as precedent in validating electronic wills in Tennessee. However it is important to note that at the time of the testator’s creation of his will, two of his neighbors were present when he e-signed the Word document. Furthermore, the will was then printed and both neighbors signed the will with a pen. Therefore it appears the court’s ruling was based on the principle of harmless error and not a ruling which categorized e-signed wills as acceptable in Tennessee.

    Acceptance of electronically signed wills via the harmless error doctrine is garnering attention in other states as well. Gökalp Y. Gürer’s 2016 article “No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision” presents the argument that (1) e-wills meet California’s writing and signature requirements; (2) e-wills can be encompassed by California’s harmless error provision; and (3) that such in- clusion is in the interest of public policy. Gökalp Y. Gürer, No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision, 49 U.C. Davis L. Rev. 1955 (2016). Harmless error also surfaced in Ohio in 2013 when a terminally ill man without a pen and paper wrote and signed a makeshift will with a stylus on his brother’s Samsung Galaxy. The court in Ohio also ruled in favor of the will being valid noting “[Ohio law] requires only that the will be in ‘writing’. It does not require that the writing be on any particular medium”. In re Estate of Javier Castro, Deceased, 2013-ES-00140 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013).
    

    Sooner or later all states will have to address electronically produced wills and other directives. Situations such as the Ohio Galaxy will case will inevitably surface in probate as tech-aged generations grow older. Presumably not all states will welcome technology into the field of wills and trusts. There is concern that legislation such as Florida’s attempted trailblazing Electronic Wills Act puts its constituents at risk of exploitation. After the initial introduction of Florida’s E-will Act, The Florida Bar Association’s Real Property, Probate and Trust Law Sec- tion opposed the bill as written stating that “it allows for the witnessing and notarization of wills using remote audio and video technology without providing adequate safeguards to prevent fraud and exploitation of Florida’s most vulner- able citizens and to ensure the identity of the witnesses and the testator and the security and integrity of the electronic wills.” (See the Real Property, Probate and Trust Law Sec- tion of The Florida Bar “White Paper on Proposed Enact- ment of the Florida Electronic Wills Act”).
    

    The Florida Bar had four primary policy concerns which very closely reflect the reasons Governor Scott ulti- mately vetoed the bill: (1) Failure to protect testators from fraud and exploitation; (2) Issues with authenticating a tes- tator’s identity; (3) Security issues with storage, preservation and access of e-wills; and (4) Incompatibility with ex- isting law. But the Florida Bar did not object outright to the use of e-signatures by a testator and his or her notary and witnesses. The Bar Section proposed, but ultimately failed, passing an amendment requiring that the electronic signatures be made by using a stylus or finger and not merely typewritten.

    But despite the efforts of forward-looking legislators and the global pressure to embrace new technology, it is by no means certain that electronic wills will quickly gain popularity. Though electronic wills have been legal in Nevada since 2001, they are exceptionally rare. So rare in
fact that Nevada estate attorneys are seemingly unanimous when stating on their firms’ websites that they have never dealt with an e-will. Accordingly these attorneys advise that such wills are still not fit for probate and conventional printed wills should instead be utilized. Though the electronic will is far from favored in Nevada its statutory components are worth looking at as new states begin examining whether to adopt similar statutes for themselves. The testators of Nevada e-wills do not need any witnesses’ signature or verification. Dictated by NRS 133.085, such wills utilizing authentication by signature must be digitally signed, not merely electronically signed. It may be that electronic wills have not been used by Nevadans because there is an easier alternative, holographic handwritten wills which are legal in Nevada. Therefore it seems unlikely that e-wills under the current statute in Nevada will ever gain traction.

    Nevertheless e-wills in Nevada are not dead. Willing.com, a website which claims to have “the world’s best estate planning software,” drafted and pushed the 2017 bill in Florida. Willing.com is now also focusing on passing a similar bill in Nevada. What’s more, the NCCUSL has re-
cently assembled the Committee for Electronic Wills which seeks to draft a uniform model addressing the formation and recognition of e-wills. The Committee will also look to facilitate the integration of other advance directive elec- tronic documentation as its mission states that the commit- tee “may seek expansion of its charge to address end-of-life planning
documents such as advance medical directives or powers of attorney for health care or finance.”

Uniform Law Commission. The National Conference of Commissioners on Uniform State Laws, n.d. Web.
31 May 2017. <http:// www.uniformlaws.org/Committee.aspx?title>.
    

    Florida’s decision whether to push forward with technology and allow for simple e-signatures will be an interesting development. For other states there will be much to learn. Modifications to secure the signatures made digitally will probably also progress in the near future. Evolving technologies may be vital in convincing legislators to forego fears that e-wills and digital signatures will be at a risk of fraud.
    

    Many in the tech-world believe the puzzle of securing e-transactions from tampering and improper revisions can be solved via blockchain. Blockchain, best known for being the technology behind digital cryptocurrency Bitcoin, is a rather abstract and complex process
which uses an open, peer to peer network which records and relays transactions between two parties in a verifiable, permanent and efficient way. Once a transaction is submitted to blockchain, any unwanted altering made to transaction is easily flagged by the system. Smocovich, Brian. “How Does a Blockchain Work?” Medium, May 7, 2017. Web. 31 May 2017. <https://medium.com/@brian.smocovich/what-the-heck-is-a-block- chain-63b0e48d891e>.
 

    Time will tell how soon legislators will come to trust expanding technology to satisfy fraud concerns relating to the transfer and delivery of wills and trusts. The proposed bills in Arizona and Indiana started down that road; both of those bills allowed for e-wills and trusts to be
authenticated via a digital certificate using a public key infrastructure (“PKI”). PKI’s future could very well be grounded by its integration with blockchain. Dickson, Ben. “Blockchain’s Brilliant Approach to Cybersecurity.” VentureBeat. N.p., 23 Jan. 2017. Web. 31 May 2017. <https://venturebeat.com/2017/01/22/blockchains-brilliant-approach-to-cyberse- curity/>.
    

    With this evolving technology growing in popularity every day, the question now is no longer if all states will allow for wills and trusts to be created and passed on elec- tronically, but when.
    

Dan DeNicuolo is a summer intern at the ABA Commission on Law and Aging.

 

by Dan DeNicuolo