Technology—Probate: Ready or Not, Here They Come: Electronic Wills Are Coming to a Probate Court Near You

Technology—Probate provides information on current technology and microcomputer software of interest in the probate area. The editors of Probate & Property welcome information and suggestions from readers.

We live in a digital age and, as a result, with increasing frequency, courts have been asked to validate electronic wills without the statutory language to deal with them. In the best-known case, In re Estate of Castro, No. 2013ES00140 (Ohio Ct. Common Pleas, Prob. Div., Lorain County, June 19, 2013), Javier Castro dictated a will to his brother, who wrote the will on a Samsung Galaxy Tablet. Javier then signed the will on the tablet, using a stylus, and two witnesses signed on the tablet. The probate court held that the electronic writing on the tablet met the statutory requirement that a will be “in writing.” The court admitted the will to probate because it had two witnesses as required by Ohio law, although lacking notarization it was not self-proving. The court had little difficulty expanding traditional will law to cover a different medium, here an electronic tablet.

A more recent case illustrates the more common electronic will scenario: that of a will written or recorded on an electronic device, without the benefit of witnesses. Shortly before his death by suicide, Duane Horton (age 21) handwrote a journal entry stating that a document titled “Last Note” was in Evernote on his phone. The journal entry provided instructions for accessing the note, and he left the journal and phone in his room. The Last Note included apologies and personal comments relating to his suicide as well as directions relating to his property with some specificity--for instance, he did not want his mother to receive anything, and his car should go to Jody if possible. Horton typed his name at the end of the document. After considering the text of the document and the circumstances surrounding Horton’s death, the court concluded that the note was a will under Michigan’s harmless error statute. In re Estate of Horton, 925 N.W. 2d 207 (Mich. Ct. App. 2018).

Some may ask why electronic wills are important enough to warrant statutory blessing and, if they are, whether statutes are even necessary. The Uniform Electronic Transactions Act (UETA), approved by the Uniform Law Commission (ULC) in 1999, allows parties to transact business electronically. Almost all states have adopted UETA, helping to usher in the age of electronic commerce. Parties may validly sign bilateral commercial contracts electronically; wills (which are unilateral) are excluded from its scope. UETA§ 3(b). In the 20 years since UETA’s promulgation, consumers have embraced electronic transactions. A society 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.

The authors of this column served as co-chairs of the drafting committee for the Uniform Electronic Wills Act (the Act), which the ULC approved at its annual meeting in July 2019. The Act will bridge the gap in UETA, allowing a testator to execute a will electronically, while maintaining protections for the testator that are available to those executing traditional wills (usually on paper). The Act also creates execution requirements that, if followed, will result in a valid self-proving will (one admitted without a court hearing to determine validity if no one contests the will).

The Act retains the traditional wills act formalities of writing, signature, and attestation but adapts them. The ULC drafting committee decided to require that a will exist in the electronic equivalent of text when it is electronically signed, thus precluding audio and video wills, unless transcribed prior to the testator’s signature. The committee was concerned that issues of proof and preservation of oral-only records would be too much for the legal system to adapt to now. History will tell whether we were wise or timid.

The electronic will must be signed in the physical presence of the requisite number of witnesses (normally, two) or in their virtual presence in the two states that currently allow it. Based on discussions with practitioner groups around the country, we believe some states are more likely to accept attestation by remote (virtually present) witnesses than other states. Accordingly, the Act is designed to allow a state to retain or drop remote witness attestation.

The drafting committee believes that the harmless error doctrine, which gives the judiciary latitude to uphold wills in the face of deficient execution procedures, is of increased importance in an age of self-helpers. Thus, section 6 of the Act adopts the harmless error doctrine even though at present it is in effect in only 11 states.

The Act provides that electronic wills, like traditional ones, can be revoked effectively with a revocatory act or a subsequent will or codicil. Although it may prove harder unambiguously to revoke an electronic will by physical act because a large number of identical originals may exist, a court will be responsible for determining the intent, which seems adequate protection. The committee considered not permitting revocation by physical act but realized that many people would assume that they could revoke their wills by deleting them from a storage medium. The Act requires proof of revocatory intent by a preponderance of the evidence, avoiding the anomaly of requiring more evidence of revocation than is required of proper execution and attestation.

Most traditional wills today are “self-proving,” meaning that the witnesses have signed not only the will but also an affidavit before a notary public, swearing that the will was properly signed and witnessed. The contents of the self-proving affidavits vary from state to state; the Act reflects the one in Uniform Probate Code (UPC) § 2-504. Although the UPC and many non-UPC states permit the affidavit to be signed at any time after the will, the Act requires that it be executed simultaneously with an electronic will. This means that the self- proving affidavit will be incorporated into the electronic will document itself.

The choice-of-law and comity provisions of the Act were perhaps the most discussed and debated ones. Some states object to the remote execution of electronic wills for a number of reasons, perhaps the most common being predictions of abuse by bad actors seeking to defraud or take advantage of vulnerable testators. As a practical matter, some states will seek to enforce that “no remote wills” policy by amending their wills acts not only to prohibit the remote execution of electronic wills in their state but also to prevent recognition of those that were validly executed out of state but presented for probate in such a “no remote wills” state.

Section 4 of the Act reflects the policy that an electronic will that is valid where the testator is physically located when signing should be given effect under that (signing) state’s law. This is consistent with the current law applicable to traditional wills and prevents the intestacy of a testator who validly signs a will while living in a state that permits remote execution but who moves to or just happens to die in a state that prohibits them. For example, a Connecticut court is not compelled to admit to probate the will of a Connecticut resident that she executed under Florida law with remote witnesses. But a resident of Florida, with a valid Florida will, signed by remote witnesses, who later becomes a Connecticut resident, would continue to have a valid will that Connecticut would admit to probate.

Trusts and estates practitioners seem divided into two camps: those who are unfazed by electronic anything and believe that all technological advances are inherently good; and those who believe that constant discussion of change and the pace of change is just noise filling a void and that HAL is lurking in every mainframe, biding its time before it takes over the world. The former say that electronic is the future, that remote witnessing and notaries are coming regardless of what we do (pointing to states like Florida and Nevada that allow remotely witnessed wills), and that remotely witnessed wills are in fact no more ripe for abuse than traditional wills. The latter argue that abuse is more likely, that disputes are more likely, and that lawyers will be eliminated from the will process if we allow an all-electronic process that will neither be good for the public nor will enhance enactability. This controversy is widespread, evidenced among drafting committee members, members of our advisors, and lawyers in audiences whom we have addressed about this topic during the last several years. The Act is drafted to allow a state to accommodate either set of practitioners, although not likely both at the same time!