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The co-hosts of the Digital Planning Podcast (DPP), Justin Brown, Jennifer Zegel, and Ross Bruch, recently sat down with Suzanne Brown Walsh, a partner at Murtha Cullina in Hartford, Connecticut, a fellow in the American College of Trust and Estates Counsel (ACTEC), and the chair of the Committee of the Uniform Law Commission that created the Uniform Electronic Estate Planning Documents Act (UEEPDA), and Professor Gerry W. Beyer, the Governor Preston E. Smith Regents Professor of Law at the Texas Tech School of Law, and an ACTEC fellow whom the Uniform Law Commission appointed as the Reporter for the UEEPDA.
The Q&A below consists of selected parts of the podcast conversation with Suzy and Professor Beyer and has been lightly edited for flow. Readers interested in hearing more of the conversation can find DPP’s November 16, 2022, episode with Suzy and Professor Beyer wherever you listen to podcasts.
DPP: Can you tell us a little bit about the basis for creating UEEPDA and why the Uniform Law Commission believed that this project was so important?
SBW: This flows out of the Uniform Electronic Wills Act. While we were framing the Uniform Electronic Wills Act and determining how wide its scope should be, we determined that all of the other documents that our clients sign—trusts, powers of attorney, and the like—the ones covered by UEEPDA—we thought they were all allowed under the Uniform Electronic Transactions Act (UETA). There’s some doubt about that. Ultimately, we decided that UETA didn’t facilitate the signing of these other nontestamentary estate planning documents. The purpose of this project was to make sure those documents will be validated, just as other documents that are e-signed are validated.
DPP: Although some practitioners believe that the UETA already permits the execution of certain electronic estate planning documents that are not wills, many believe that the comments in the UETA about the unilateral nature of those documents should prohibit the electronic execution of those documents. What do you think?
GWB: When you look at the UETA, it says that it deals with transactions, and transactions require two people to be interfacing, and most estate planning documents are unilateral. I thought, as did many others, that, although it is debatable, there is definite authority, or definite strong arguments, that the UETA would not apply to unilateral documents. That type of uncertainty is not acceptable for attorneys who practice law—maybe it works or maybe it doesn’t work. That’s not good for a practitioner.
DPP: UEEPDA only applies to nontestamentary estate planning documents. Can you define what is meant by “nontestamentary estate planning documents”?
GWB: Well, this is an interesting discussion to have because we had to discuss and had to figure out how to define what these types of documents were. The first approach we came up with was to come up with a laundry list of documents that would be designated as nontestamentary estate planning documents. That got to be cumbersome trying to list everything. Then we switched to trying to have a broad definition, a capacious definition that we could use to define what the documents would be. But, after we worked on that definition, we discovered that that didn’t work either, so we went back to a laundry list. The laundry list in the statute covers things like trusts and related trust documents, financial powers of attorney, advance directives, similar health documents, powers of appointment, guardian declarations, disclaimers, body disposition documents, et cetera.
And then certain documents are specifically excluded from the scope of the act. Obviously, wills and codicils are excluded, real property deeds are excluded, and certificates of title for motor vehicles, watercraft, and aircraft are excluded. In the comments, states are given the option to add or subtract from that list because, for example, in the list is a community property survivorship agreement, which is not relevant in common law marital property states. Some states don’t have body disposition documents, so that can be removed, or maybe the state wants to add other documents to the list. Although there is a formulated definition, states can add or subtract documents from that list as they so desire.
The act is restricted to records that are readable as text. You can’t use oral or video recordings as documents. Following the lead of the Uniform Electronic Wills Act, they all must be text-based files such as documents or pdfs.
DPP: There’s a catch-all phrase that essentially says any other record that’s intended to carry out an individual’s intent would be included as a nontestamentary estate planning document. What is the scope of that catch-all provision?
SBW: The catch-all is intended to cover, or capture, any documents that aren’t otherwise allowable under UETA. For example, I’ve observed that beneficiary designations of retirement accounts and life insurance are being electronically signed more often than they’re being signed in ink, and I’m sure that’s because the companies who offer those contracts correctly view those beneficiary designations as a contract between the custodian of the account or the life insurer and the owner of the policy or the account holder. But there are probably a lot of documents we didn’t list, or that’ll arise in the future that we didn’t list, and the catch-all could pick those up.
DPP: UEEPDA essentially provides that, if a signature on a nontestamentary estate planning document is required, it may be in either ink or electronic form. But one of the things that we as practitioners had to deal with during the pandemic was remote witnessing and the physical presence of remote witnesses. Why didn’t the committee dive into the physical presence requirement for witnesses or notaries and instead leave those decisions to the individual states?
GWB: The people in different states have tremendously diverse views as to whether or not remote witnessing, and even remote notarization, should be allowed. And, if we put a remote witnessing component into the act, I think it would’ve slowed up enactment, so we decided that we are not going to require an enacting state to authorize the remote signing of witnesses if the validity of a document is dependent on having witnesses, but the act does have optional language. If a state wants to make that decision that remote witnessing is to be allowed, that they can appear by electronic presence rather than being physically present, they’re free to enact it.
SBW: I’m going to chime in and add one more thing. At one of our last meetings, I proposed the inclusion of this optional section that allows states to expressly say they can have remote witnessing if they want to. And I made that case in section 207 of the act, because I think, if you’re going to electronically sign, you have to recognize the possibility that folks don’t want the witnesses in that room. The whole point, especially emphasized during the pandemic, is that electronic signing facilitates remoteness in a time or a place where people don’t necessarily want to be, or aren’t able to be, in the same room.
DPP: How does UEEPDA address the retention of nontestamentary estate planning documents that are executed electronically, and what are the requirements about who can hold and retain the documents?
SBW: The answer is it doesn’t, and it doesn’t address those requirements deliberately for a couple of reasons. Number one, the ULC has had a positive result drafting the UETA to be less prescriptive of technology, and that act has been in place for a long time without the need for an update because of updates in technology. Number two, we looked at the existing drafting models for electronic wills when we started drafting that act, and a lot of them included some prescriptive custodian requirements. There had been a previous law enacted in Nevada that was very prescriptive of the technology that had to be employed and which no one used. Essentially, what we’re doing is we’re leaving that to market forces.
DPP: Under UEEPDA, what happens if someone signs electronic nontestamentary estate planning documents in a jurisdiction that has UEEPDA but then moves to a jurisdiction where it is not recognized?
GWB: The answer to that question is going to depend upon that new state, the state that they move to, and what type of savings statute that state has about giving validity to documents that are valid in other states. Almost all states have a statute for wills that says, if the will is valid in the state where executed, it will be valid in our state even if it doesn’t meet our state’s requirements.
It gets interesting with electronic wills because there are a few states that will not recognize an electronic will, even though it’s valid in the state where executed. They’ve said, “Our policy is no.” It’s going to depend upon what states have within their own statutes giving validity to documents executed in other states, which already exists with regard to paper documents, so it should extend to electronic documents unless the state has decided to exclude an electronic document from its savings statute.
DPP: If you had a crystal ball, where would you predict we’ll be in 20 years, as an industry, with estate planning documents and signings and probate processes?
GWB: I think, in the future, that we will move continuously into more electronic documents. And you asked me to predict what I would like to see happen in 20 years, well, I’d like to see one estate planning document where it is a will, it’s a trust, it’s a power of attorney, it’s a financial power of attorney, health care, body disposition, the whole thing in one document rather than having seven or eight documents. And I know, in my state, the execution requirements are all different. Some need witnesses, some need notarization, some need notarization and witnesses, and some need notarization or witnesses. They’re all different. To have one estate planning document and then have everything together, all electronic, is what I’d like to see happen in 20 years.
DPP: Many, many, many thanks to our esteemed guests, Suzie and Gerry, today. It was an honor to have you on the podcast and we greatly value your time and expertise. It will be interesting to see how this develops.
