Department

Uniform Laws Update

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Electronic Wills

In 1999, the Uniform Law Commission (ULC) approved the Uniform Electronic Transactions Act (UETA) to help facilitate online commerce. The basic rule of UETA is simple: parties may voluntarily consent to conduct transactions by electronic means, and a record or signature may not be denied legal enforceability solely because it is in electronic form. Almost every state has adopted UETA, helping to usher in the age of electronic commerce. The scope of the law, however, is expressly limited to exclude a transaction subject to a law governing the execution of wills.

The drafters of UETA excluded wills from the act’s scope to defer to a long-standing body of law requiring special execution procedures designed to prevent fraud and coercion. But nearly 20 years have passed, during which consumers have embraced electronic transactions. A generation that banks online, shops online, and communicates online also expects to find legal services online, and a body of law that prevents the execution of an electronic will is increasingly viewed as anachronistic.

Last year, Nevada enacted a statute allowing the electronic execution of wills, Nev. Rev. Stat. § 133.085, and the governor of Florida vetoed a similar bill that the legislature passed. Online vendors of estate-planning services have begun pushing legislation in other states as well. But these first-generation statutes may not protect testators from fraud or coercion to the same extent as statutes based on the traditional common law rules for executing a will. To ensure adequate protection in the digital age, the ULC has formed a drafting committee to address the special problems associated with electronic wills.

Under the common law and most state statutes, the testator must execute the will in the presence of two witnesses who attest to its execution. Under some statutes, a will is also valid if executed in the presence of a notary public. See, e.g., Unif. Prob. Code § 2-502. An electronic will could be similarly executed by a testator in the presence of two witnesses (or a notary) on a tablet computer and signed with a finger on a touch-screen rather than a pen on paper. Although this type of execution was not contemplated by older statutes, at least one probate court has already deemed a will executed in this manner to be valid. In re Estate of Castro, No. 2013ES00140 (Lorain Co., Ohio, Ct. of Common Pleas, Prob. Div.)

A more difficult question involves wills attested to online by remote witnesses. Assume a testator creates a will, and emails an electronically signed copy to two friends, who then sign as witnesses and email a copy back to the testator. Should the will be valid? One function of witnesses is to testify in probate court if the validity of the will is challenged. Could a remote witness testify as to the state of mind of the testator at the time of execution? Could a testator be coerced to execute and email such a will? What if the testator creates a contemporaneous video of the execution and attaches the video to the will?

One possible solution involves a trusted third party who can serve as an additional witness. Let’s call that person a “qualified supervisor.” Qualified supervisors would have to be credentialed in some manner—perhaps licensed as an attorney or otherwise registered with and regulated by the state. The qualified supervisor would contemporaneously supervise the testator’s execution of the online will as well as the witnesses’ execution of their affidavits. Presumably, companies that provide online estate planning services would provide qualified supervisors for their clients. States could regulate qualified supervisors and require licensing and surety bonds to protect against fraud and coercion.

Online execution presents new choice of law issues. Should the law of the testator’s residence control the execution of wills, or the law where the estate planning service provider is domiciled? What if the witnesses are out of state? Which state’s court has jurisdiction to settle disputes? During the effort to enact an electronic will statute in Florida last year, one hopeful local vendor stated publicly its goal to have the state of Florida become for wills what Delaware is to incorporation. Is that the right public policy?

Storage and authentication of online wills present a different set of problems. Electronic documents can be secured against tampering, but there is no 100% secure, permanent method of storage. The current industry standard involves redundancy—storing multiple copies of a document on servers in different locations. Would states create online will registries, or is the private sector better equipped to provide the service? What if an online estate planning service provider goes out of business? Is state regulation of will storage services necessary to ensure preservation?

Finally, the rules for amending and revoking wills will have to change to accommodate electronic documents. A paper will can be revoked by executing a subsequent will or by a destructive act, such as burning or tearing up the document. Deletion of an electronic file is not quite the same thing. A forensic analysis of the hard drive might be able to recover the file, and if the document was emailed to someone else copies are sure to exist. In the absence of a later-executed will, how can a testator memorialize revocation to ensure that an electronic copy of the revoked will is not probated?

The drafting committee has met twice to grapple with these issues and will read its draft for critique and comment at the ULC’s Annual Meeting in July. The committee will continue to meet periodically, and a final act on electronic wills is likely to be approved in summer 2019. n