Feature

Twenty-First Century Wills

By Jennifer L. Fox

In the 21st century, electronic wills are coming of age. Companies that sell boilerplate online wills are advocating for electronic wills. Some states are reconsidering execution formalities to opt for more technologically-friendly will statutes. Electronic wills promise to be convenient and inexpensive, which means that estate planning may finally become accessible to all. But electronic wills pose challenges regarding authentication, fraud, and exploitation.

Businessman Reviewing Digital Communication

Businessman Reviewing Digital Communication

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The function of will formalities is to ensure authentication. See Robert H. Sitkoff & Jesse Dukeminier, Wills, Trusts, and Estates 141 (10th ed. 2017). Under traditional will formalities, every state requires a will to be written, signed by the testator, and attested. The first hurdle in creating any will is properly drafting it, and the second hurdle is properly executing the will. If a will is not properly drafted or executed, then it may be litigated and invalidated. With the demands of a society consumed with instantaneous services provided online, it is the task of our states to develop legislation on electronic wills that safeguards against abuse yet stays up to date with technology.

Will Requirements

When determining testamentary intent, a probate court must determine if the decedent intended to make a will and, if so, determine the terms of the will. John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 491 (1975). The probate court must also determine if the will is authentic. Sitkoff & Dukeminier at 141. The general rule is that a will must be in writing, signed, and witnessed by two individuals. Gökalp Y. Gürer, Note, No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision, 49 U.C. Davis L. Rev. 1955, 1961 (2016). These formalities serve as evidence to ensure the authenticity of a will. Sitkoff & Dukeminier at 141. Will formalities also standardize the drafting of wills, provide legal significance, and protect against fraud. Id. at 144.

Customarily, states required wills to be executed in strict compliance under the law. Id. at 146. But states then began to permit wills that substantially complied with the law. Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). “States that adhere to the substantial compliance doctrine hold that a noncompliant will may be considered compliant under certain circumstances.” Sitkoff & Dukeminier at 170–171. Typically, substantial compliance occurs only if the will has only minor errors. Id.

Eventually, some states adopted the harmless error rule. Under the harmless error rule, a court has discretion to determine that a noncompliant will is valid if by clear and convincing evidence the petitioner shows that the testator intended the writing to serve as his or her last will and testament. Id. at 174. Pursuant to § 2-503 of the Uniform Probate Code (UPC), a “document or writing is treated as [compliant with formalities] if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute [a new will or an adjustment to a previous will].” UPC § 2-503 (amended 2010). Only11 states have passed the harmless error rule. Sitkoff & Dukeminier at 176. With 39 states having a higher standard of review, identifying and codifying electronic wills is vital to prevent intestacy.

Types of Electronic Wills

Electronic wills can be categorized by how they are created and stored. There are three types of electronic wills: offline, online, and qualified custodian. Developments in the Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). Electronic wills are convenient for clients that do not or cannot visit an attorney’s office. Proponents of electronic wills expect more individuals to put their intentions in writing. Critics, however, are concerned by the threat to cybersecurity.

Offline

Offline electronic wills are typed or handwritten in ink or with a stylus, onto an electronic device by the testator, signed by the testator, and stored on the local hard drive of the electronic device. Id. Offline electronic wills are the equivalent of a typical holographic will, which is merely handwritten and signed by the testator without any use of modern technology. Holographic Will, Black’s Law Dictionary Free Online Legal Dictionary. (2nd Ed. 2019). One problem with offline electronic wills is the potential for tampering and eventual obsolescence of technology. Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). Computers are the “perfect copying machine, every copy is a perfect copy, indistinguishable from the original, making it very easy to make changes and very hard to prove which version of a file is the original.” See Gerry W. Beyer and Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U.L. Rev. 891 (2007).

Offline electronic wills are susceptible to fraud because of the difficulty in identifying the original last will and testament. See Scott S. Boddery, Electronic Wills: Drawing a Line in the Sand Against Their Validity, 47 Real Prop. Tr. & Est. L.J. 197, 206-07 (2012). An offline electronic will, however, can be authenticated by “metadata.” Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). Metadata is “information needed to manage, archive, and preserve a resource such as when it was created, whether it has been altered and who can access it.” Id. One of the advantages of metadata is that it can “address concerns about the corruption or alteration of wills stored electronically in domestic settings, such as on a testator’s computer.” Modernizing the Law to Enable Electronic Wills, Willing, https://bit.ly/2mYBBQT.

Online

Online electronic wills are created or stored using an unsuspected third-party service without regulations. Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). Typically, the third-party service did not intend to serve as a platform for the creation or storage of the electronic will. Id. Examples of third-party services include Facebook, Dropbox, or even a cell phone provider. Unlike offline electronic wills, online electronic wills are not stored on the testator’s hard drive. Although online and offline electronic wills pose issues for potential fraud, online wills can be easier to authenticate because the will is created or stored on a neutral third-party platform. Online electronic wills, however, are subject to terms and conditions within agreements between the testator and service provider. A third-party service could potentially object to the production of the electronic will because of the decedent’s privacy rights, which may transcend death.

Qualified Custodian

Qualified custodian electronic wills are created, executed, and stored by for-profit companies that are subject to state regulations. Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). An example of a qualified custodian for electronic wills is the website Willing.com, which heavily lobbied in Florida to pass a law for electronic wills. See Stephen Lacey & Brooke M. Benzio, Electronic Will—“E-Wills”—Are You Ready for the Future? Fla. Today (Aug. 7, 2017, 10:54AM), https://bit.ly/2yrt7Eg. Qualified custodians may also provide remote witnessing and notarization. Id. In that regard, qualified custodian electronic wills are superior to offline and online electronic wills because the qualified custodian provides services such as recording the execution ceremony and permanently storing the will. Unlike online electronic wills, the service agreements by qualified custodians are designed to share evidence upon the testator’s death. Developments in Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018). In order to address issues with electronic wills, national acts have been passed.

National Acts

In 1999, the National Conference of Commissioners on Uniform State Laws created the Uniform Electronic Transactions Act (UETA), which established national regulations for electronic transactions. Forty-seven states and the District of Columbia (all except Illinois, New York, and Washington state) have adopted the UETA. Oklahoma Real Estate Commission: Senate Bill 657 Amends Uniform Electronic Transaction Act (May 18, 2011), https://bit.ly/35OmtY6. Although the UETA regulates electronic transactions, it does not apply to electronic wills. UETA (1999). In 2000, Congress passed the Electronic Signatures in Global and National Commerce Act (E-sign Act) to authorize electronic signatures and records for interstate commerce. E-Sign Act, Pub. L. No. 106-229, S. 761, 106th Cong. (2000). Similar to the UETA, the E-sign Act does not apply to electronic wills. Id. at § 103(a)(1).

In 2018, the Electronic Wills Act was drafted by the Uniform Law Commission. Electronic Wills Act § 5 (July 2018 draft). A uniform approach was proposed for regulating electronic wills due to the inconsistency of state statutes and a transient nation. Id. The proposed execution formalities mirror the Uniform Probate Code. The Electronic Wills Act allows for remote witnessing unless the will is self-proving. Furthermore, it does not require electronic wills to be stored in a specific medium and does not require a qualified records custodian. The Electronic Wills Act is still developing as state courts and legislatures address legal authority and case law on electronic wills.

State Cases

In 2001, Nevada was the first state to pass legislation on electronic wills. Nev. Rev. Stat. Ann. § 133.085 (2001). Although the legislation was revolutionary, it was never used because the technology required to comply with the statute did not exist. Additionally, Nevada allows for holographic wills, which are far less cumbersome to create than electronic wills. In other states, electronic wills were challenged, and different approaches were used to determine validity. Gerry W. Beyer and Katherine Peters, Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will (February 23, 2019), https://bit.ly/33C8nXL.

In Taylor v. Holt, a decedent drafted an offline electronic will on his computer and signed it using a cursive font generated by the computer. Taylor v. Holt, 134 S.W. 3d 830 (Tenn. Ct. App. 2003). The decedent’s sister was the sole intestate beneficiary, but the decedent’s girlfriend was the sole beneficiary under the electronic will. When the decedent passed away, his sister contested the will on the grounds that it was invalid because it was not properly signed by the decedent. In Tennessee, a signature is defined as “any symbol or methodology executed or adopted by a party with intention to authenticate a writing or record.” Id.; Tenn. Code Ann. § 1-3-105(27)(1999). The Court of Appeals of Tennessee held that the decedent had properly executed the will because his computer-generated signature was valid, and the will was signed in the presence of two attesting witnesses in accordance with Tennessee law. The Court of Appeals of Tennessee did not specifically address the validity of electronic wills.

In In re Estate of Javier Castro, a terminally ill man drafted an offline electronic will on a Samsung Galaxy and signed it with a stylus. In re Estate of Javier Castro, 2013-ES-00140 (Ct. Comm. P1. Lorain Cnty., Probate Div., Ohio, June 19, 2013). The decedent signed the will in the presence of two attesting witnesses. The issue was whether the electronic will was considered a “writing” and signed in compliance with Ohio law. The Ohio court held that the electronic will was valid, despite Ohio not having any laws addressing electronic wills. Id. The court reasoned that Ohio law mandates only that a will be in “writing” and does not mandate that a will be written on a specific medium.

In Guardianship & Alternatives, Inc. v. Jones (In re Estate of Horton), 325 Mich. App. 325 (Mich. Ct. App. 2018), the decedent created a suicide note on his phone that included a disposition of his property. Before he died, the decedent wrote a handwritten note with instructions on how to access the electronic document on his phone. The Michigan Court of Appeals held that the electronic document was a valid will because clear and convincing evidence showed that the decedent intended the document to be his last will and testament in accordance with Michigan law. See Mich. Comp. Laws § 700.2503 (2019). The Michigan Court of Appeals reasoned that the electronic document and extrinsic evidence were conclusive of the decedent’s testamentary intent.

State Statutes

Nevada, Indiana, Florida, and Arizona are the only states that have passed laws regarding electronic wills. Nev. Rev. Stat. Ann. § 133.085 (2017); Ind. Code Ann. § 29-1-21-3 (2018); H.B. 409, 2019 Leg., 121st Sess. (Fl. 2019); Ariz. Rev. Stat. Ann. § 14-2500 (2017). In the District of Columbia, electronic wills are pending legislation. H.R. 169, Council Period 22, Reg. Sess. (D.C. 2017). New Hampshire and Virginia have contemplated but have not passed laws on electronic wills. S.B. 40, 2017 Leg., 165th Sess. (N.H. 2017); H.B. 1403, 2018 Leg., Reg. Sess. (Va. 2018).

Nevada

Nevada’s revised law on electronic wills became effective on July 1, 2017. Nev. Rev. Stat. Ann. § 133.085 (2017). This law requires electronic wills to be stored in an electronic record and contain the date and electronic signature of the testator. Id. Additionally, the will must contain at least one of the following: an authentication characteristic of the testator, the electronic signature and electronic seal of an electronic notary public, or the electronic signatures of two or more attesting witnesses. The testator and witnesses may sign the will remotely from out of state, but the will must be stored in Nevada.

Indiana

Indiana’s law on electronic wills took effect on July 1, 2018. Ind. Code Ann. § 29-1-21-3 (2018). There are still issues, however, with “document integrity evidence.” Id. This evidence requires, in pertinent part, digital markers showing that the electronic will has not been altered after its initial execution and witnessing, is tamper evident, displays changes to the text after its execution, and displays the city, state, date and time that the will was signed by the testator and witnesses. Similar to Nevada’s original law on electronic wills, the technology available to comply with “document integrity evidence” is still unavailable.

Arizona

In 2017, Arizona approved a bill regarding electronic wills that became effective on July 1, 2019. Ariz. Rev. Stat. Ann. § 14-2500 (2017). The law requires the testator’s electronic signature, the date and time of the electronic signature, an authentication method to identify the testator, and detection to any alteration to the electronic will. Id. The authentication method requires that the testator provide government identification and biometric identification such as a fingerprint unless an alternative method of technology can be substituted. The Arizona law does not specify the type of technology to store and protect the electronic will from alterations after its execution.

Florida

The Florida House of Representatives passed the “Florida Electronic Wills Act” that was supposed to become effective on July 1, 2017. H.B. 277, 2017 Leg., 119th Sess. (Fl. 2017). The bill required that an electronic will be stored in an electronic record that is distinguishable and be electronically signed by the testator in the presence of two attesting witnesses. Id. The bill authorized witnessing and notarization through remote technology. Additionally, a qualified custodian must have custody of the electronic will. But Florida Governor Rick Scott vetoed the bill in June of 2017 for reasons including concerns regarding the authentication of parties through the use of remote technology. Governor Rick Scott, Letter to Secretary Ken Detzner, (June 26, 2017).
In 2018, the bill was revised to address the deficiencies in the prior bill and passed the Florida legislation. S.B. 1042, 2018 Leg., 120th Sess. (Fl. 2018). On June 7, 2019, the bill was approved by the newly elected Florida Governor, Ron DeSantis. H.B. 409, 2019 Leg., 121st Sess. (Fl. 2019). On January 1, 2020, the bill becomes effective law. The bill was revised to authorize remote witnessing; however, the witnesses must use audio-video communication technology. Id. The bill also authorizes remote notarization provided that the testator can answer verbal questions posed by the notary.

New Hampshire

In 2017, the New Hampshire Electronic Wills Act was proposed to coincide with other state laws regarding the formalities of will execution, whether drafted on paper or electronically. S.B. 40, 2017 Leg., 165th Sess. (N.H. 2017). The bill requires an electronic will to be stored on an electronic record, have the testator’s electronic signature, and be electronically signed by a notary or two witnesses. Id. The notary or witnesses must be in the state; however, they may be present by live video and audio conferencing. Unlike other states, New Hampshire’s bill does not provide for extra safeguards to authenticate the identities of the parties.

Virginia

In 2018, the Virginia legislature sought to amend the Virginia Code Title 64 to legalize electronic wills. H.B. 1403, 2018 Leg., Reg. Sess. (Va. 2018). The bill requires an electronic will to be drafted and stored in an electronic document that includes the date and the testator’s electronic signature. Id. The electronic will must also include an electronic signature by a notary or two witnesses. All signatures must be signed simultaneously with the testator’s signature. Furthermore, a qualified custodian must keep the will and all visual records. The provisions for the qualified custodian are comprehensive to ensure the identification of the parties and proper execution of the electronic will.

Washington, DC

In 2017, the legislature of Washington, DC, proposed a bill on electronic wills. H.R. 169, Council Period 22, Reg. Sess. (D.C. 2017). The bill requires an electronic will to be drafted and stored in an electronic record that includes the testator’s electronic signature with the date and time. Furthermore, the electronic will must include an authentication method that complies with the Uniform Electronic Transactions Act of 2001, so any alterations to the electronic will are detectable. However, the bill does not specify the type of technology to comply with the authentication method.

Conclusion

In theory, electronic wills seem simple and accessible. But it appears from current and proposed legislation that electronic wills require more rigorous standards than the execution formalities for traditional wills. National acts on electronic wills may help create a uniform approach on execution formalities in order to prevent inconsistencies among state statutes. As our tech-savvy population ages, the acceptance and demand for electronic legislation will grow. Even more important is the transformation of estate planning for attorneys and finding their role in the new drafting and execution of 21st century wills.

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By Jennifer L. Fox

Jennifer L. Fox is attending the University of Miami School of Law, Heckerling Graduate Program in Estate Planning, and practices in Boca Raton, Florida.