Feature

Electronic-Will Legislation: The Uniform Act versus Australian and Canadian Alternatives

By Adam J. Hirsch and Julia C. Kelety
Without precautions of some sort, e-wills threaten to become vehicles for exploitation by
unscrupulous caretakers or other wrongdoers.

Without precautions of some sort, e-wills threaten to become vehicles for exploitation by unscrupulous caretakers or other wrongdoers.

(credit: iStockphoto)

The Uniform Law Commission has unveiled a new legislative product, the Uniform Electronic Wills Act (Uniform Act). Promulgated in 2019, the Uniform Act offers a mechanism for formalizing wills that testators create on a computer or other portable device and never print out on paper. Under this legislation, a testator can execute a will by signing it electronically, either in the physical or virtual presence of witnesses. The testator can then store the will on a data file, or with a firm offering e-will storage services, until the time when it matures. No state has yet adopted the Uniform Act, although four (Arizona, Florida, Indiana, and Nevada) have enacted non-uniform legislation authorizing e-wills.

Deficiencies of the Uniform Act

We have reservations about the Uniform Act. (For additional criticisms, see Adam Hirsch, Technology Adrift: In Search of a Role for Electronic Wills, 61 B. C. Law Rev. 827, 846–51 (2020).) Its drafters claim that the Act responds to popular demand. “Many potential testators want to execute a will online,” they aver. Turney Berry, Update on ULC Activity in Estate Planning, Trusts & Estates, Feb. 2018, at 11, 12. Yet, not a single consumer group is advocating for this legislation. As a Canadian reform commission concluded, “Increasing familiarity with computer use may indeed make electronic wills attractive to some individuals, but there is little evidence that either the legal profession or the public have any more than a curious interest in electronic wills at present.” Report on Electronic Wills, Saskatchewan, 2004, p. 24 (Saskatchewan Report). What was true in 2004 remains true today: The driving force behind e-will legislation is not private citizens but commercial firms hoping to create demand by advertising and marketing e-wills. With mixed success, these firms have been lobbying for the enactment of e-will legislation. Voting within state legislatures on this non-ideological measure has been breaking down along party lines—a symptom of strategic lobbying. See Hirsch, supra, 867. We regard the advancement of profitable enterprises as an inadequate ground for countenancing e-wills.

Premium Content For:
  • Current ABA Member
Join - Now