Susan N. Gary, Orlando J. and Marian H. Hollis Professor of Law, University of Oregon School of Law.
The author served as Reporter for the Drafting Committee on Uniform Electronic Wills Act. The author would like to thank Suzanne B. Walsh, Chair of the Drafting Committee, and Turney P. Berry, Vice-Chair of the Drafting Committee, for their collegiality in the shared work on the Electronic Wills Act and for their support in the writing of this Article. The Article benefitted from comments by participants at a presentation at the 2020 Annual Meeting of the Association of American Law Schools.
Susan N. Gary, Orlando J. and Marian H. Hollis Professor of Law, University of Oregon School of Law.
Author’s Synopsis: In response to increasing legislative activity involving electronic wills, in 2017 the Uniform Law Commission (ULC) appointed the Drafting Committee on Uniform Electronic Wills Act to develop a uniform act providing rules governing the execution of electronic wills. The committee strove to create a statute that would be consistent with existing wills laws but would address differences for wills executed electronically. The committee sought to create rules that would protect the testator from manipulation by others but also from unwanted intestacy.
This Article describes, from the perspective of the Reporter, the committee’s process in developing the Electronic Wills Act. The Article explains each provision of the Act and describes reasons for decisions made in developing the Act, including decisions to exclude certain ideas from the Act. The Article also compares the Act’s provisions with provisions of electronic wills statutes enacted in Arizona, Florida, Indiana, and Nevada. The Article concludes with a few recommendations for enactment.
Given the increasing use of electronic documents and electronic signatures, testators will attempt to execute wills electronically. Although lawyers may prefer wills executed on paper, and paper wills will likely be the norm for many years to come, legislatures should consider enacting statutes that can guide and protect testators who prefer to execute their wills electronically. The Electronic Wills Act provides a thoughtfully developed model for states to use.
A will takes effect when the most important person connected to the document is dead. The law needs to protect the intent of that person, not only to protect the person from fraud and undue influence, but also to protect the person from unintended intestacy. Execution requirements developed at a time when wills were executed in a tangible medium, typically on paper. The idea of executing a will electronically has surfaced in recent years, and the trend toward electronic execution of all sorts of documents makes the creation of rules for electronic wills inevitable. This Article explains why the Uniform Law Commission (ULC) decided to create a uniform act providing rules for the electronic execution of wills.
This Article examines the issues the Drafting Committee discussed and explains the decisions made to address, or not address, these issues when drafting the statute.1 By the time the ULC approved the Uniform Electronic Wills Act (the E-Wills Act or the Act),2 four states had adopted electronic wills statutes.3 Nevada revised an earlier electronic wills statute in 2017,4 Arizona and Indiana adopted new legislation in 2018,5 and Florida followed with new statutes in 2019.6 This Article will compare decisions made in the E-Wills Act with the approaches taken in these other statutes.
Lawyers will likely continue to have their clients execute paper documents, but some clients may prefer electronic execution, and lawyers should be prepared to explain why they chose to provide, or refuse to provide, electronic execution of documents as a service. Laypeople executing wills without the aid of a lawyer may execute their wills electronically, and new statutes can provide guidance to courts facing questions about the probate of those wills. Lawyers and courts will continue to face challenges, including locating the final copy of an electronically executed will and establishing whether the decedent revoked the will.
Despite the challenges and concerns, electronic execution of wills may bring some benefits. Remote online notarization, if used, may protect a testator’s intent. Indeed, a will notarized remotely may provide better protection from fraud than a will executed on paper. If a state decides to create an online repository for wills, the repository may help surviving family members locate a decedent’s will after the decedent’s death. An online repository would be a significant benefit, given the number of missing wills that require expenditures of time and money to locate.7
Electronic execution of wills still causes consternation and worry among many estate planning lawyers.8 A goal of the E-Wills Act is to provide sensible rules that track as nearly as possible the rules that apply to non-electronically executed wills.9 The E-Wills Act does not attempt to incorporate a business model into the statute, and the Act recognizes that any references to electronic tools risks being out of date quickly.10
II. What is an “Electronic Will”
The issues related to electronic wills depend on what is meant by an electronic will. Although a testator can write a will by hand, today the majority of wills begin as word processing documents. They are, thus, created electronically, but typically the testator or the lawyer prints the document, so when the testator executes the will, the document is not electronic. For purposes of this Article, “electronic will” refers to a will that was in electronic form when executed. The E-Wills Act provides rules for the execution of a document in electronic form, and the focus of the E-Wills Act, and this Article, is on the electronic execution of a will in electronic form at the time of execution.11 Rather than focusing on “electronic wills,”12 this Article focuses on the electronic execution of wills.
III. Landscape Leading to the E-Wills Act
A. Electronic Documents are the Norm in Commerce
A uniform state law act and a federal statute reflect the increasing desire to execute documents electronically. These statutes have facilitated the use of electronic signatures for commercial documents. The Uniform Electronic Transactions Act (1999) (UETA) validates the use of electronic signatures13 but contains an express exception for wills and testamentary trusts.14 As of 2019, all but three states have adopted UETA, with most of the enactments occurring in 2000 and 2001, shortly after the ULC approved the Act.15 After nearly twenty years, ordinary consumers have become accustomed to executing agreements electronically.16
At the federal level, Congress adopted the Electronic Signatures in Global and National Commerce Act in 2000.17 The act governs the use of electronic documents and signatures in interstate commerce. Known as E-Sign, this act permits states to provide alternative procedures for electronic documents and signatures but excludes wills and testamentary trusts from this provision.18 The Federal Register suggests that the reason for the exclusion may be “the personal nature of the information disclosed in these documents and the relative privacy interests of the donor and beneficiaries may raise issues that do not arise in legal proceedings involving commercial or other civil matters.”19
Although wills and testamentary trusts cannot be executed electronically under UETA, the widely adopted statute has enabled electronic execution of a variety of other estate planning documents. Revocable trusts, beneficiary designations, and powers of attorney can all be executed electronically.20 If someone has used an electronic beneficiary designation, that person may assume that a will can also be executed electronically. Further, because people use electronic tools such as computers, tablets, and smartphones for many of life’s tasks, they may assume that those tools can be used for their wills. A person acting without the advice of a lawyer may attempt to create an electronically executed will and not realize that it will be ineffective.
People who realize that they must print a will to execute it effectively may nonetheless want to be able to execute the will electronically. In some cases, a testator ready to execute a lawyer-drafted will may prefer to avoid another trip to the lawyer’s office. For lawyers working with clients who live a great distance from the lawyer’s office, the ability to offer electronic execution as an option may be attractive to clients.
In 2016, Gökalp Y. Gürer captured the essence of the prevalence of electronic tools:
And just as humans have evolved from painting on cave walls to putting pen to pad, society has evolved into a post-modern era where computer electronics dominate what used to be a paper-driven lifestyle. This is no new phenomenon; the first computer dates back to the 1950s. This transition to going online is partly an environmental effort to reduce waste, but it is also a social transition that permeates many aspects of life.21
The desire to be able to manage one’s business and personal affairs electronically is already pervasive and will continue to grow. Expanding electronic options for wills seems inevitable.
Willing.com and LegalZoom are two companies that provide online will drafting services.22 The companies sell a package that walks a customer through a series of questions and then provides a written will for the customer. The customer is able to create the will online, but in order to comply with the will formalities in most states, the customer must print the will before executing it.23 The companies want to make it possible for customers to execute the wills online and have drafted and promoted legislation that authorizes online execution of wills.24 The companies will likely continue to promote legislation.
Many estate planning lawyers have met the idea of electronically executed wills with skepticism and worry.25 The skepticism lies in the view that legislation providing execution rules for electronic wills is not needed because a testator can print an electronically created document and sign the hard copy. The worry is that electronic execution will lead to fraud and abuse.
A May 2018 article by Michael Millonig raises the concerns the Drafting Committee heard from a number of members of the legal community.26 The underlying theme of Millonig’s article is that paper works well for wills, printing a document prepared on a computer is easy enough, and executing a hard copy of a will is easier than meeting the requirements of the electronic wills statutes that had been proposed when he wrote the article.27 Millonig notes that UETA and E-Sign both exclude wills and testamentary trusts because they are different from commercial documents.28 He posits that the exclusion of wills and testamentary trusts from these statutes supports his position that electronic execution of wills is unnecessary and unwise.29
Some of Millonig’s concerns relate to witnesses. He worries that executing an electronic will at home, even with witnesses who are physically present, may create an opportunity for elder abuse because fraud and undue influence can be more easily perpetrated at home than in a lawyer’s office.30 He worries that even if the will execution includes online notarization using a camera recording, a person physically present could be exerting undue influence before the camera is turned on or could be standing outside the range of the camera.31 Of course, these concerns can also apply to the execution of a paper will at home. In Millonig’s view, remote witnessing is even worse.32 A witness in the physical presence of the testator may be able to judge the testator’s cognitive ability or nervousness, and perhaps be able to determine whether the testator is being coerced into signing the will.33 Millonig worries that permitting the use of remote witnesses will result in the loss of witnesses who may be able “to assess the physical, mental, and psychological condition of the testator.”34
Part of Millonig’s article focuses on the issue of where the document will be kept and whether surviving family members would have trouble obtaining a will that was stored online.35 He also raises concerns about the security and authenticity of the electronic document and worries about risks of hacking and data breaches.36 Scott Boddery raises similar concerns about hacking.37 He suggests that any online storage risks intrusion and worries that someone hacking into the stored will could delete it, resulting in intestacy.38
The concerns raised by Millonig, Boddery, and others are not without merit, but the genie cannot be forced back into the bottle at this point. Given the increasing reliance on electronic tools for various aspects of daily living, including the execution and use of legal documents, people will attempt to execute wills electronically. A statute with adequate protections could save those erstwhile testators from intestacy. The need to help these testators and the desire to create a thoughtful statutory model that would not require a particular form of business assistance to create a valid electronically attested will persuaded the Uniform Law Commission to begin work on a new uniform act.39
IV. Policy Goals for the Uniform Electronic Wills Act
In the spring of 2017, the ULC appointed a Drafting Committee to develop the E-Wills Act and asked the author to serve as the Reporter. The ULC named Suzanne Walsh, a Uniform Law Commissioner from Connecticut, as Chair, and Turney Berry, a Commissioner from Kentucky, as Vice Chair.40 The Drafting Committee included lawyers with practices in estate planning, elder law, and estate litigation, and received input from observers representing will drafting companies, associations of notaries, and fiduciary counsel at banks that manage estates.41 After two years of work by the Drafting Committee, the ULC approved the Act at its annual meeting in July 2019.42
In appointing the Drafting Committee, the ULC recognized the worries about authorizing electronic wills but also understood that legislatures would continue to face industry-backed bills and that individuals would continue to believe that they could prepare and execute wills electronically. The Drafting Committee sought to create an act that would be consistent with existing wills laws and “would not enshrine a particular business model in the statutes.”43 The goals were to maintain safeguards comparable to the legal safeguards provided for wills executed in a tangible form and to provide a process that if followed, would result in a valid will without the need for a court determination of validity.44
The Drafting Committee decided that the Act should rely on existing law relating to the validity of wills and should provide new rules only to the extent necessary to make adjustments for electronic execution.45 As a ULC project, the Act follows the requirements for execution of wills under the Uniform Probate Code (UPC).46 A state that has not adopted the UPC can modify the Act as necessary to conform the Act to its requirements for non-electronic wills.47
A. Functions the Formalities Serve
At the outset of its deliberations, the Drafting Committee considered the functions served by the formalities required for a legal will.48 The formalities seek to protect the testator from fraud or undue influence, to provide evidence of the testator’s intent, and to remind the testator of the seriousness of the endeavor.49 The Drafting Committee sought to preserve, and even strengthen these functions, often referred to as the evidentiary function, the channeling function, the ritual or cautionary function, and the protective function.50
1. Evidentiary Function
A will is a document created by a person while alive but given effect after the person’s death. The goal of wills law is to give effect to the intent of the decedent through rules that create evidence of that intent.51 A properly executed will provides evidence, and the requirements for proper execution go to the need to provide evidence that the testator intended the document to be the testator’s will and intended the testator’s property to be distributed as provided in the will.52 The Drafting Committee sought to create rules to protect the decedent’s intent without being unduly burdensome.
The Drafting Committee learned that remote online notarization can protect a will by encrypting and locking the will, making the will tamper evident.53 Ultimately, the Drafting Committee decided against a require-ment of remote online notarization for effective execution of a will, but the Act does require remote online notarization for a self-providing affidavit when the witnesses are not physically present with the testator.54
2. Channeling Function
By using a will prepared in accordance with law and accepted social norms, a testator can create a document that should be effective to dispose of the testator’s property.55 By following the legal requirements, the testator can express instructions in a way that can be understood and followed so that the property will be distributed as the testator wishes. The persons interpreting the will can be assured that the testator understood that the testator was making a will, and they should be able to interpret the instructions as the testator planned. A properly prepared and executed will provides a means to help survivors distribute a decedent’s property efficiently and without litigation.
3. Ritual – Cautionary Function
A person may comment about what should happen to the person’s property after death long before reaching a final decision about the property. The legal rules on will execution seek to focus the testator’s attention on the seriousness of the act.56 A properly executed will indicates that the testator has a serious intent to dispose of property in the way indicated and considers the instrument to be in final form. A question raised in the Drafting Committee discussions was whether e-signing a document indicated less seriousness of purpose. The conclusion was that e-signing a document is a formal step, and the fact that a will is executed electronically should not be interpreted as showing casualness of purpose. The requirement of witnesses furthers this ritual function.
4. Protective Function
A properly executed will helps protect a testator from people who might seek to manipulate the testator’s dispositive wishes.57 Wills law has rules that require that the testator has capacity and is free from undue influence, fraud, delusion, and coercion.58 All of these rules apply to wills executed electronically,59 and the requirement of witnesses may help to deter manipulative behavior. In addition, if remote online notarization is used in connection with an electronically executed will, the document should be protected from tampering.60
V. Structural Issues
A. Other Law and Equity Applies
The E-Wills Act provides rules that apply to wills executed electronically. Other than the rules set forth in the Act, which are specifically necessary due to the electronic nature of the will and its execution, the enacting state’s law applicable to wills in general also applies to wills executed electronically.61 Principles of equity relating to wills also apply.62 All states have common law or statutory rules to protect testators, including rules with respect to undue influence, duress, and fraud.63 States also have rules that require capacity to make a will, including the attainment of a specified age and the mental capacity to understand the testator’s personal situation sufficiently to make a will.64 In addition, the common law requires that a testator intend the document to be the testator’s will.65 All of these rules, however articulated in the state’s statutory or common law, will apply to wills executed electronically.66
B. Choice of Law
Choice of law raises interesting issues with respect to wills executed electronically. Under the common law, the execution requirements for a will depended on the situs of real property, for the real property, and the domicile of the testator, for the personal property.67 The statutes of many jurisdictions now treat as valid a will that was validly executed under the law of the jurisdiction where the will was executed or where the testator was a resident or was domiciled.68 Many jurisdictions also permit application of the law of the testator’s domicile when the testator dies.69
For a non-electronic will, the testator will necessarily be physically present in the jurisdiction where the will is executed, but if the will is an electronic document, a testator could be physically present in one jurisdiction but deemed electronically present in another jurisdiction. For example, the Nevada and Florida statutes authorizing electronic wills treat a will as executed in Nevada or Florida as valid under that state’s law even if the testator is not physically in the state at the time of execution.70 Thus, a person in a jurisdiction that does not authorize electronically executed wills could go online and execute a Nevada or Florida will without going to the state.
For a jurisdiction that wants to require non-electronic execution for a valid will, the idea that a domiciliary of that jurisdiction could use electronic presence to validate a will and then expect to probate the will in the state of domicile may be troubling. That is, if a domiciliary of State A goes online and executes a Nevada will without actually going to Nevada, State A may not want to give effect to the will if the testator later dies in State A. Even a jurisdiction that wants to authorize electronic execution of wills may want its own rules to apply, and not the rules of some other jurisdiction.
A state that does not want to authorize electronically executed wills can continue to require that a will be tangible and not electronic. The policy question that remains, however, is whether the state should recognize a will validly executed in another state. And the further question is whether “in another state” should include electronic presence in another state. The Drafting Committee concluded that the Act should be a balance between the interests of a state that does not want to probate electronic wills and the interests of testators who validly execute electronic wills.71 The Act therefore requires a state to give effect to a will validly executed under the law of another state, but only if the testator was a resident or domiciliary of the other state or was physically present in the other state when the testator executed the will.72
The Drafting Committee concluded that even if a state like Nevada permits electronic presence to validate the will in that state, another state should not be required to accept electronic presence as sufficient for a will to be probated in that other state.73 However, the Drafting Committee also thought that if a testator validly executes a will while living in a state that authorizes electronic execution of wills, the testator should be entitled to have that will be effective even if the testator later moves to another state.74 The testator should not be forced to execute a new will, and if the testator lacks the mental capacity to execute a new will, the testator should not be forced into intestacy.75 The Drafting Committee decided to require physical presence at the time of execution in the jurisdiction that authorized the electronic execution, or residence or domicile in the jurisdiction, either at the time of execution or the time of death.76
The Act will be effective only where enacted, but the policy decision to require a state to give effect to a validly executed will as long as the execution did not depend on electronic presence is appropriate for all states. This comity rule is consistent with current law for non-electronic wills.77 An electronic will executed in compliance with the law of the state where the testator was physically located should be given effect, even if the testator later moves to another state, just as a non-electronic will would be given effect.78 A rule that would invalidate a will properly executed under the law of the state where the testator was physically present at the time of execution, especially if the testator was domiciled there, could result in intestacy if the testator was unaware of the new state’s rule.
Indiana and Arizona both take an approach similar to that taken by the E-Wills Act in that the mere electronic presence of the testator in the jurisdiction that authorizes electronic execution of a will is not sufficient to validate the will.79 The will must comply with the law of the jurisdiction giving it effect, the testator must be physically present in the jurisdiction that authorizes the will when the testator executes the will, or the will must be valid under the laws of the jurisdiction where at the time of execution or death the testator is domiciled (Indiana)80 or the testator is domiciled, has an abode, or is a national (Arizona).81
VI. Electronic Execution of a Will
A. Is an Electronic Writing a Writing?
Current wills statutes require that a will be in writing, but they do not require that the writing be in a particular medium.82 Although most wills are written on paper, anything tangible and reasonably durable will suffice.83 The Restatement (Third) of Property explains that words scratched on a tractor fender can be treated as a will but drawing words in the air cannot.84 Wills written electronically and not printed before execution raise the question of whether the electronic medium is acceptable.
In In re Estate of Javier Castro,85 a hospitalized testator dictated a will to his brother, who wrote the will with a stylus on a Samsung Galaxy Tablet. The testator signed the will on the tablet using the stylus.86 Two witnesses observed the testator sign the will and then used the stylus to sign on the tablet.87 The issue before the probate court was whether the electronic writing on the tablet met the statutory requirement that a will be “in writing.”88 The testator and all witnesses were in the same room and all signed using a stylus rather than typing a signature, so the execution followed the other required formalities.89 The testator and witnesses had not signed an affidavit, so the will was not self-proving.90 Although the writing had not been reduced to tangible form, the court in Castro appeared to have no trouble determining that the electronic document met the writing requirement.91
A 2018 case in Michigan involved a document written on the decedent’s phone.92 Like Castro, In re Estate of Horton involved an electronic document that remained electronic at the time of the decedent’s death.93 However, unlike Castro, no witnesses had seen the decedent write and sign the document.94 The determination of validity of the will depended on application of Michigan’s harmless error statute due to the lack of witnesses.95 The court did not address whether the electronic writing on the phone met the writing requirement of the statute; it simply assumed that it did.96
A goal of the Drafting Committee was to clarify that an electronic writing is a writing for purposes of the requirement that a will be in writing. The goal was to avoid the need for a hearing in a situation like Castro, in which the will otherwise meets the execution requirements. The Act accomplishes this goal through its requirement that a will be “a record readable as text at the time of signing”97 and its definition of record as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”98 The more controversial issue was whether to require a writing at all.
B. Should a Writing Be Required?
In Australia, state will execution statutes require that a will be a “document,” and cases have determined that “document” includes an audio-visual recording.99 One of the questions the Drafting Committee discussed was whether to require that a will be “in writing,” and if so, how to ensure that the document was written in a language that was not computer code. The Drafting Committee concluded that the writing requirement should be retained.100 Although future statutory changes might authorize an audio-visual recording as a will, the Drafting Committee concluded that the Act should change existing law only to the extent necessary to accommodate electronically executed wills.101 The rationales for requiring text included concerns about the functions of the formalities, especially the evidentiary function and the ritual function.102
Written words may not be as precise as a writer intends, but the process of writing does require the writer to think about the interpretation of the words, and the written words provide good evidence of the writer’s intent. Although construction may be necessary in some cases, written words are likely to be more specific and provide better evidence than spoken words. When a person speaks about the person’s dispositive wishes, the person may use words that are imprecise and may couch the explanations in language that could be considered precatory. The Drafting Committee also thought the more formal nature of a written document, even if written by the testator and not by a lawyer, might better serve the ritual function of the formalities.
After deciding to retain the writing requirement, the Drafting Committee struggled with two concerns involving that requirement. First, a person could dictate a will using dictation software with the intent that the audio would be converted to text at some later time, perhaps at the time of probate. Second, a person trained in computer code could read a computer language comprised of zeros and ones the way other people read English. The Drafting Committee concluded that the requirement should be for a writing that was already in text form, and the text should be in a language other than a computer language. The statute says that the will must be “a record readable as text at the time of signing.”103 Thus, a will dictated using voice recognition software must be converted to text before the testator signs the will. The comment to section 5 explains that “readable as text” includes the documents like the ones in Castro and Horton but does not include computer code.104
Jeffrey Dible, in materials prepared for a presentation on the Indiana electronic wills statute, indicates that he thinks that under the Indiana statute, a dictated will could be considered a will even if the text had not been generated before the execution of the will. He writes:
In this writer’s opinion, the definition of “electronic will” (new I.C. § 29-1-21-3(10) and the required formalities for valid execution of an electronic will (new I.C. § 29-1-21-4) are worded broadly enough so that an Indiana resident could use a speech recognition app (Siri, Cortana, etc.) and dictation software (Dragon Dictation, Microsoft’s Dictate, etc.) to dictate the text of an electronic will or trust instrument and to electronically sign the resulting document by verbally dictating “I am now signing my electronic [will / trust document],” followed by similar verbal confirmations by the two witnesses they were also [“]signing.” The resulting document, once saved in electronic form, would be an “electronic record[”] and would satisfy the requirements under House Enrolled Act 1303. It arguably would not be just an oral or nuncupative will, because the electronic record could be used to generate the entire text of the will. . . . The resulting document might be inelegantly and even confusingly worded, but it would have prima facie validity as an electronic will. To be probated, the “dictated” electronic record for the will would have to be used to generate a complete converted copy.105
As Dible notes, a dictated will that has not been converted to text may be “confusingly worded.”106 With that concern, and others, in mind, the Drafting Committee concluded that requiring that the will be converted to text before execution would better protect the testator.
C. Is an Electronic Signature a Signature?
In a 2003 case, Taylor v. Holt,107 Steve Godfrey prepared a will on his computer and then typed his signature in a cursive font at the end of the electronic text of the will while two neighbors watched.108 Godfrey then printed the will, and the two neighbors signed the document as witnesses.109 The will left Godfrey’s estate to his girlfriend, and when she attempted to probate the will, with affidavits signed by the two witnesses, Godfrey’s sister challenged the will, arguing that the testator had not signed the will.110 The court concluded that the typed signature qualified as the testator’s signature,111 based on a Tennessee statute that defines signature to include a “symbol or methodology executed or adopted by a party with intention to authenticate a writing . . . .”112 In Taylor, the will was not attested or stored electronically, and the court was able to address the issue of an electronic signature using a will execution statute that did not contemplate electronic execution.113
In In re Estate of Horton, the decedent signed the will on his phone by typing his name.114 The court did not discuss any question about whether the typed name was effective as a signature.115 As e-signing has become more common, people have become used to the idea of typing a person’s name with the intent that the name be a signature. Indeed, many people no longer write in cursive and may not have an identifiable signature.116
The Act defines “sign” and “signature” to include a tangible symbol or an electronic symbol or process.117 A signature under the Act could be a signature made using a stylus on a tablet, as in Castro; a typed signature, as in Taylor v. Holt; a pasted electronic copy of a signature; or a symbol or process developed as a signature.118 The important aspect of the signature requirement is that the person signing must intend the action taken to be a signature that validates the will.119
A digital signature is a type of electronic signature that provides additional protection for the signature.120 A digital signature “employs public key infrastructure (PKI) encryption or other security features to digitally bind or integrate the electronic signature(s) and the rest of the document into an electronic record that is encrypted or otherwise made tamper-resistant or tamper-evident.”121 A digital signature will provide protection against someone attempting to alter a will after execution, but the technology will not be available to everyone attempting to execute a will electronically. Jeffrey Dible wrote about digital signatures in connection with the Indiana statute, which does not require a digital signature.122 Dible points out that as a type of electronic signature, a digital signature would be permitted and would provide increased protection for the document.123
In contrast with the other statutes, the Arizona statute requires a security procedure in connection with an electronic signature.124 The procedure must be able to establish that the signature was
(i) [u]nique to the person using it[;] (ii) [c]apable of verification[;] (iii) [u]nder the sole control of the person making the electronic signature[; and] (iv) [l]inked to the electronic record to which the electronic signature relates in a manner so that if the electronic record is changed the electronic signature is invalidated.125
Under the Arizona electronic wills statute, the signatures of the testator and the witnesses must be electronic signatures that meet those requirements.126
1. Should Witnesses Be Required?
The Drafting Committee had a lively discussion about whether witnesses should be required for a will to be validly executed electronically. Many will substitutes do not require witnesses. Documents with beneficiary designations, like retirement plans and insurance policies, do not require witnesses, but they involve a third party. A trust need not have witnesses, which means that in most states a revocable trust could be established by a settlor without witnesses. However, in Florida, if the settlor acts as the initial and only trustee of a revocable trust, the trust must be executed with will formalities.127 This Florida rule reflects the concern that without witnesses, a person executing a document that disposes of property at death could be subject to abuse or undue influence. In other states, a best practice is to have the settlor/trustee’s signature notarized to provide evidence that the settlor did, indeed, sign the document.
The harmless error doctrine permits a court to give effect to a will that lacks witnesses, and the lack of one or both witnesses was a primary reason behind the development of the doctrine.128 A will given effect using the harmless error doctrine requires a court to make that determination, thus protecting the testator’s intent.129 Indeed, the focus of the court proceeding is on the decedent’s intent that the document be the decedent’s will.130
Another change to the requirement of witnesses for a will that has gained some acceptance is the substitution of notarization of the will for the attestation of witnesses. The UPC permits notarization in lieu of witnesses131 to address the problem that occurs when a lay person, and occasionally a lawyer, thinks that notarization is required and sufficient to validate a will.132 Although this rule treats a will as validly executed without witnesses, the requirement of notarization means that someone other than the testator is involved in the execution of the will.
Although some states permit notarization as a substitute for witnesses, and some states use the harmless error rule to probate a document that lacks witnesses, all jurisdictions except Pennsylvania start with the basic premise that valid execution of a will requires attestation by witnesses.133 Pennsylvania requires the testimony of witnesses to probate the will, so a will without witnesses who observed the execution cannot be probated.134
The Drafting Committee discussed questions about the evidentiary benefit that witnesses provide. When a will is executed at a law firm, staff members may be called in to witness the will. These witnesses may have little interaction with the testator, and after witnessing hundreds of wills over many years, may have no specific recollection of an individual testator. Nonetheless, staff members likely have a standard practice of not witnessing a will if the testator appears to lack capacity or to be influenced improperly by someone else. In some situations, a witness may be able to testify about the mental and emotional condition of the testator when the will was executed and whether the witness observed anything that suggested coercion or undue influence.
The Drafting Committee concluded that the idea of electronic wills would be challenging to some legislatures (and estate planning lawyers) and that maintaining the traditional requirements associated with the execution of a will would facilitate acceptance. The requirement of witnesses makes sense in terms of the functions sought to be served by the will formalities.135 Witnesses may be able to provide evidence about the testator’s state of mind, the testator’s capacity, and possible undue influence.136 They serve a cautionary function, reminding the testator of the importance of what the testator is doing. The witnesses, and the requirement of witnesses, may help protect the testator against fraud, duress, and undue influence.137
The E-Wills Act requires two witnesses for a validly executed will.138 The Drafting Committee noted that the harmless error doctrine could be even more important with respect to wills executed electronically, given the possibility that individuals may attempt to execute wills electronically without the assistance of a lawyer and without witnesses.139 The Drafting Committee also included the provision permitting notarization in lieu of witnesses.140 Remote online notarization, as the process in RULONA is called, creates additional protection for a will that exists only electronically and is executed electronically.141
2. Should Remote Attestation Be Permitted?
The critical issue with respect to witnesses of an electronically executed will is whether the witnesses have to be in the same physical place as the testator. Under traditional wills law, two tests developed with respect to the location of witnesses—the line-of-sight and conscious presence tests.142 The earlier test was that the witness had to be in the line of sight of the testator, and courts invalidated wills for failing that test, even if clear evidence showed that the testator intended the document to be the testator’s will and no evidence of fraud existed.143 The conscious presence test loosened the rule a bit, but some level of physical presence is required with a tangible will.144 With electronic execution, electronic presence is a possibility, so the statute needed to address remote attestation.
Given that some states will not want to permit remote witnessing, the Act provides two options: (1) a requirement that witnesses be physically present with the testator, and (2) a requirement that the witnesses be present physically or electronically.145 The Act defines electronic presence as “the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.”146 The comments explain that physical presence is not defined in the Act because the Act relies on the enacting state’s rules for physical presence, which could be conscious presence or line-of-sight presence.147 The goal is to have the same rules for presence apply to an electronically executed will, and if a state permits remote witnessing, a remote witness must be able to see and hear the testator to the same extent required for a witness physically present.148 A remote witness may participate using the same accommodations that would apply to a differently abled witness who was physically present.149 The Drafting Committee concluded that the Act should not attempt to provide specific accommodations because any attempt at specificity might be too restrictive and might also be unable to change with future advances in technology.150
The states that have adopted electronic wills statutes have taken different approaches to the issue of remote witnessing. Neither Arizona151 nor Indiana152 allows remote witnessing. Jeffrey Dible suggests that Indiana may want to revisit this decision after a few years of experience with the statute.153 He writes that the legislature can consider “how the audio-video technologies and document integrity methods evolve and improve, and see what litigation occurs involving remotely-witnessed wills in other states that allow it, before revisiting the issue of allowing remote witnessing of electronic wills inside Indiana.”154
In Nevada the testator must sign the will electronically, and the document must meet at least one additional requirement—two witnesses, electronic notarization, or an authentication characteristic that is part of the electronic record.155 Thus, a will can be executed without witnesses if one of the other requirements is met. The statute defines authentication characteristic as follows:
a characteristic of a certain person that is unique to that person and that is capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, video recording, a digitized signature or other commercially reasonable authentication using a unique characteristic of the person.156
In Nevada a digitized signature of the testator is sufficient to validate a will, and if the testator uses a digitized signature, no witnesses are needed.157 Alternatively, a testator could sign a will electronically and use a video recording or another authentication characteristic to meet the second requirement.158 The statute provides for a different sort of protection in lieu of the requirement of witnesses.159
Florida permits remote witnessing so long as the “audio-video communication technology” meets statutory requirements and the individuals who are remote are supervised by a notary public and are “authenticated and signing as part of an online notarization session in accordance with” Florida statutes.160 A witness must hear the testator acknowledge that the testator has signed the will,161 and a testator must answer a series of specific statutory questions that relate to the testator’s state of mind, any influence from substances or people, and awareness of the process.162 The Florida statute includes the requirements for remote online notarization in the statute,163 while the E-Wills Act refers to RULONA for the additional protective requirements.164
In Florida, a “vulnerable adult” cannot execute a will using remote witnesses.165 The Florida statutes define vulnerable adult in the Adult Protective Services chapter, and the definition encompasses any adult whose ability to provide for the person’s own care or protection is impaired.166 Impairment could occur due to the “infirmities of aging,” so this limit on the use of remote witnesses could be expansive in connection with will execution.167
VII. The Self-proving Affidavit
A. E-Wills Act
The Drafting Committee considered whether to include execution requirements beyond those required for a non-electronic will. The Drafting Committee worried that additional requirements might result in denying probate to wills that represent the intent of their testators. The Drafting Committee concluded that the best course was to impose additional requirements in order to make a will with remote attestation self-proving.168 If the will is not self-proving, a court will have to determine whether the document being submitted for probate should be considered a validly executed will.169 The court oversight will protect the testator and the document, making additional protection at the time of execution less necessary.
The E-Wills Act provides two options for enacting states.170 One option is to require that the witnesses and notary be physically present with the testator, and the other is to permit electronic presence.171 If everyone involved in the execution of the will is physically present, the witnesses can attest the will electronically and the notary can notarize their signatures electronically, which makes the will self-proving.172 The process is similar to the process for a non-electronic will, but the notary’s seal must be affixed to or logically associated with the electronic document.173
Some states may also want to permit remote attestation and notarization. The E-Wills Act provides that if a state permits the attestation or notarization to be accomplished remotely, the notary must use remote online notarization as provided under RULONA, or a similar process under a similar statute.174 The advantage of remote online notarization is the additional protection it provides for the document.175 In remote online notarization, the person signing a document appears before a notary using audio-video technology.176 Depending on state law, the document can be paper or digital, but the process assumes that the signer and the notary are in two different places. The notary takes additional steps to establish the signer’s identity, and the notary keeps an audio-video record of the process.177 The additional security provided by remote online notarization protects against forgery.178
Although a will may be made self-proving at a time later than execution under the UPC,179 the E-Wills Act requires that the execution of the self-proving affidavit be completed at the time of execution.180 As the comment explains, an electronically executed will “has metadata that will show the date of execution, and if an affidavit is logically associated with an electronic will at a later date, the date of the electronic will and the protection provided by the self-proving affidavit may be uncertain.”181 If a testator fails to make a will self-proving when the testator executes the will electronically, the testator can later re-execute the will. The requirement for re-execution of the will avoids the possible confusion and loss of protection that could result from a later completion of a self-proving affidavit in connection with an electronically executed will.182
The E-Wills Act requires an affidavit to make a will self-proving, but the Act does not include requirements for a qualified custodian and does not attempt to create a single authenticated copy of a will that could be distinguished from other copies.183 The Drafting Committee decided that given the different types of wills that might be executed electronically, those additional requirements might invalidate wills that reflected the intent of the testators. Further, the Drafting Committee did not want to require the testator to use a commercial company to store the will.
B. State Statutes
Three of the four states that have enacted electronic wills statutes require a qualified custodian to make an electronically executed will self-proving.184 Although these statutes do not preclude an individual from serving as a qualified custodian, the extensive requirements make it likely that the role will be filled by a business set up to serve as a qualified custodian.
In Arizona and Nevada, to be self-proving a will executed electronically must designate a qualified custodian, and the will must be under the custody of a qualified custodian at all times before being offered for probate or reduced to a certified paper copy.185 The qualified custodian may be an individual as long as the individual is not related by blood, marriage, or adoption to the testator or a devisee under the will.186 The qualified custodian must sign an agreement with the testator to store the will,187 must “consistently employ and store electronic records of electronic wills in a system that protects electronic records from destruction, alteration or unauthorized access and detects any change to an electronic record,”188 and must keep a visual record of the testator and witnesses, a visual record of documentation establishing their identities, and an audio-video recording of the execution process.189 The statute includes rules governing what the custodian must do if the custodian wants to stop holding the will.190
Florida also requires a qualified custodian to make a will self-proving.191 In Florida the qualified custodian must be domiciled in and a resident of the state of Florida or be incorporated, organized, or have its principal place of business in the state.192 Like Arizona and Nevada, the Florida statute contemplates that the custodian will be a business. The custodian must regularly store electronic documents, specifically including electronic wills, in a “secure system.”193 The statute details rules for maintaining the will, for transferring custody of the will, for providing access to the will by the testator, and for duties with respect to the will when the testator dies.194 A qualified custodian must post and maintain a blanket surety bond and a liability insurance policy to cover losses sustained by the testator or beneficiaries.195
Indiana does not require a qualified custodian to make a will self-proving and does not even require a notarized affidavit.196 The self-proving clause can be a declaration by the testator and witnesses that is incorporated into the electronic record of the will.197
A testator can revoke a non-electronic will by executing a new will or by using a physical act on the will with the intent to revoke the will.198 When a testator executes a will electronically, multiple copies may exist, so revocation by physical act becomes more complicated. The Drafting Committee had to decide whether to permit revocation by physical act, and after deciding that it should be permitted, how to address the issue of multiple copies. This part explores the reasons behind the E-Wills Act rules and considers approaches taken by the four existing state statutes.
A. E-Wills Act
Decisions about revocation by physical act were influenced by two decisions the Drafting Committee had made about the scope of the Act. First, the Drafting Committee decided not to require a custodian of the will or to provide rules for the chain of custody of an electronically executed will. The Drafting Committee decided to focus on execution of the document, so that the Act could encompass different types of electronic wills—a will written with a stylus on a Samsung tablet, a will typed on a phone, and a will executed using software in a lawyer’s office or through a purchased will drafting program.199
Second, the Drafting Committee discussed but discarded the idea of requiring a single authenticated copy of an electronically executed will. The Drafting Committee concluded that the different types of wills and the possibility of self-help, non-lawyer-aided wills made doing so problem-atic. The concern was that such a requirement would invalidate many documents intended as wills.
1. Revocation by Subsequent Will
The E-Wills Act provides that an electronic will can be revoked by a subsequent will, which can be any document executed with will formalities that states that it revokes the will or that revokes the will by changing the way the testator’s property will be distributed.200 Any subsequent will, including a non-electronic will, can revoke the electronic-ally executed will. Revocation using a subsequent will is the preferred method for revoking an electronically executed will, given the evidentiary questions that arise in connection with revocation by physical act.201
2. Revocation by Physical Act
A testator who has access to the testator’s electronic will may assume that deleting the electronic file will revoke the will.202 The testator might try some other type of physical act, assuming that destruction would equal revocation. The Drafting Committee concluded that permitting revocation by physical act was necessary to avoid giving effect to a will the testator intended to revoke. The Act does not define physical act, but the comments explain that a physical act includes “deleting a file with the click of a mouse or smashing a flash drive with a hammer.”203 If the testator stores the will with a third party, the third party may provide a delete button on the website connected with the storage.204 If the testator pushes the button with the intent to revoke the will, the testator has used a physical act.205 If a testator prints a copy of the will and writes “revoked” on the copy, that act also would be a physical act.206
Revocation by physical act, for both electronic and non-electronic wills, requires that the act of revocation affect the document directly and that the testator takes the action with revocatory intent. With respect to affecting the will directly, the comments explain:
Sending an email that says, “I revoke my will,” is not a physical act performed on the will itself because the email is separate from the will. The email could revoke the will . . . as a subsequent will, if the email met the formalities required under Section 5(a) or met the burden of proof under Section 6. Of course, if there were a separate physical act, such as deleting an electronic will on an electronic device, such an email could be useful evidence in interpreting the testator’s intent.207
Revocatory intent must be established by the party arguing that the testator intended to revoke the will, and that party must prove the testator’s intent by the preponderance of the evidence.208 The Drafting Committee decided to require proof by a preponderance of the evidence because it seemed more likely to give effect to a decedent’s testamentary intent than a higher standard.209 The Drafting Committee concluded that the risk of false positives was acceptable. The preponderance of the evidence standard is consistent with the law for non-electronic wills.210
The E-Wills Act provides that a physical act on one copy with the intent to revoke the will is sufficient, even if multiple copies of the will exist.211 Traditional law applicable to duplicate originals supports this rule.212
3. Lost Wills
The lost will presumption may cause a missing will to be treated as revoked. Under the common law, if a will last known to be in the possession of the testator cannot be found at the testator’s death, a presumption that the testator destroyed the will with the intent to revoke it may apply.213 This presumption has historically applied to non-electronic wills.
The lost will presumption will apply to wills executed electronically, and the presumption raises concerns that a testator will accidentally delete an electronic file without the intent to revoke the will.214 As with non-electronic wills, evidence can show that the deletion happened unintentionally. Evidence might show that the computer on which the will was stored was destroyed in a house fire, or it might be shown that someone other than the testator had access to the computer and might have deleted the will. If a will cannot be found and the lost will presumption is overcome, a copy of the will or the testimony of the person who drafted the will can be used to prove the contents of the will.215
B. Arizona, Florida, Indiana, and Nevada
Like the E-Wills Act, Florida permits a testator to revoke an electronic will by physical act, although Florida requires clear and convincing evidence to provide that the testator performed the act with the intent to revoke the will.216 Arizona, Florida, and Nevada all describe the physical act that must be taken for revocation, using some or all of the words “delete, cancel, render unreadable, obliterate.”217 These three states limit the ability of the testator to revoke an electronic will by physical act.
Arizona and Nevada both allow the testator to revoke an electronic will by physical act,218 but if the will is in the custody of a qualified custodian, the testator must direct the custodian to revoke the will in an instrument executed with will formalities.219 Thus, if a qualified custodian holds the will, and in both of these states a custodian is required for a self-proving will,220 an electronically executed will cannot be revoked by physical act.
Indiana, like Arizona and Nevada, allows a testator to revoke a will by deleting the will, but Indiana is even more restrictive.221 In Indiana, the testator can revoke an electronic will by physical act only if the will exists only on the testator’s own computer.222 Like Arizona and Nevada, a will held by a custodian can be revoked only by a subsequent will, but in Indiana, this rule applies to any third party, including a “cloud based document storage service” that holds the will.223 Thus, if the testator uses cloud storage to back up the testator’s documents, the testator cannot revoke the will by deleting it. In Indiana, if the testator uses a subsequent will to revoke a will, the statute requires the testator to “use the testator’s best efforts to contact each custodian and to instruct each custodian to permanently delete and render nonretrievable” the will.224
IX. Should Harmless Error Be Available for Electronic Wills?
Using the harmless error doctrine, a court can decide to admit a document to probate as a will even if some of the execution formalities were not met.225 The court can excuse a defect in the formalities as a “harmless error” if the proponent of the will can establish, by clear and convincing evidence, that the testator intended the writing to be the testator’s will.226 The focus of the doctrine is on the intent of the decedent at the time the decedent created the writing.227 The doctrine of harmless error replaces strict compliance with the formalities with direct evidence of the decedent’s intent regarding the document.228
Eleven states have enacted the harmless error doctrine as part of their wills statutes,229 and in those states the doctrine can be applied to an electronically executed document. In 2018, a Michigan court used the doctrine to validate as a will a document the decedent had written and signed electronically with no attesting witnesses.230 Shortly before his death by suicide, Duane Horton handwrote a journal entry stating that a document titled “Last Note” was on his phone.231 The journal entry provided instructions for accessing the note, and Mr. Horton left the journal and phone in his room before leaving the house to take his own life.232 The “Last Note” included apologies and personal comments relating to his suicide, as well as directions relating to his property.233 Mr. Horton typed his name at the end of the document.234
After considering the text of the document and the circumstances surrounding Mr. Horton’s death, the probate and appeals courts applied Michigan’s harmless error statute to excuse the lack of witnesses.235 The courts found that Mr. Horton intended the note to be his will and concluded that the note was a document that could be treated as executed in compliance with Michigan’s requirements for execution of a will.236
Several non-United States jurisdictions have used harmless error to validate electronic wills left behind when the decedent committed suicide.237 In 2002, a South African court used harmless error to admit to probate an electronic document saved on the decedent’s work computer.238 When the decedent committed suicide, he left a handwritten note stating that his will could be found on the computer.239 The note provided the decedent’s employee identification number to allow access.240 The computer was used only by the decedent, and the password was securely protected.241 The court found that the decedent had drafted the document and intended it to be his will.242
In a 1996 case in Quebec, Canada, a decedent left a note with directions to find a disk marked “this is my will/Jacqueline Rioux/February 1, 1996.”243 The information on the disk directed the distribution of her property and was unsigned.244 The court admitted the document to probate using the Quebec version of harmless error.245
Several Australian cases have involved electronic wills and the harmless error doctrine. In each of the following three cases, the court found that the electronic document was a document for purposes of the statute, the document stated testamentary intentions, and the decedent intended the document to be the decedent’s will. In each of these cases the court admitted the will to probate after the decedent committed suicide. Daniel Yazbek left a document titled “Will” on his laptop computer.246 Karter Yu left several documents on his iPhone, including a document that began, “This is the Last Will and Testament,” and named an executor and provided instructions for Yu’s property.247 Mark Nichol left an unsent text message on his phone.248 The text was addressed to Nichol’s brother, contained directions for the disposition of property, included a date, and was signed with Nichol’s initials and date of birth.249
The E-Wills Act includes a harmless error provision based on the UPC provision.250 The comment to that section notes:
The harmless error doctrine may be particularly important in connection with electronic wills because a testator executing an electronic will without legal assistance may assume that an electronic will is valid even if not witnessed. The high standard of proof that the testator intended the writing to serve as will should protect against abuse.251
Part of the Drafting Committee’s discussion about whether the E-Wills Act should require witnesses involved the concern that people will assume that that they can use an electronic device to provide instructions for testamentary dispositions and will not be aware of the need for attesting witnesses. Especially in a suicide situation, a person intending to create a will is not likely to ask witnesses to sign the document. Even in other situations, a person may assume that writing dispositive wishes on a phone or computer will be effective. The benefit of relying on harmless error to address wills that lack attesting witnesses is that a court will be involved in determining whether the document was intended to be a will. The court involvement adds a safeguard against abuse.
X. Custody of the Will
The E-Wills Act does not address the question of who keeps the will or how it must be kept. As described throughout this Article, the Drafting Committee focused on the electronic execution of a will and did not address other issues related to electronic wills. One issue that will be a concern with some electronic wills is the issue of storage. Some types of electronic wills—like the will in Castro and the will in Horton—do not raise storage issues.252 However, a will executed electronically on the testator’s computer and stored on a server or a will executed with the help of a company in the business of storing electronic documents, raises concerns. Multiple copies of the will may exist, raising issues about which copy is the final copy. Also, when the testator dies, a surviving family member may have difficulty locating the decedent’s will.
A. State Repository
If a state were willing to create a state repository, an electronic will could be maintained in the repository. The repository would solve the problem of being able to locate the will after the testator’s death. Indeed, a repository would be a benefit for non-electronic wills, given the not-infrequent problem of tracking down a will when someone dies. A state repository would have a financial cost, and any bill requiring a repository for wills would carry a fiscal note. Given the many constraints on state budgets, the creation of a state repository may not be feasible.253
B. Qualified Custodian
The statutes in Arizona, Florida, and Nevada all create “qualified custodians,” and all three states require a qualified custodian for a will to be self-proving.254 Part VII.B describes these statutes in connection with self-proving affidavits. The statutes assume that someone other than the testator may store the will, and they provide requirements as to who can be a qualified custodian, how the will must be stored, what happens if the custodian decides not to continue as a custodian of the will, and the duties of the custodian when the testator dies.255 The rules also create a process for converting an electronic will into a certified original paper will.256
Indiana permits the testator and witnesses to make the will self-proving without a qualified custodian, but if someone other than the testator maintains custody of the will, the statute imposes requirements on the custodian.257 The statute provides requirements as to what the custodian may and must do during the testator’s life and on the testator’s death,258 and the statute provides a process for creating a “complete converted copy.”259 The requirements for the custodian of a will under Indiana law are less extensive than the requirements for a qualified custodian in the other three states. The requirements are the sorts of requirements an individual acting as the custodian of a relative’s will could manage.
Indiana’s statute includes an “advisory instruction” that anyone providing another person with an electronic form or electronic user interface for the creation, completion, or execution of an electronic will should use.260 The statute explains that a provider, who may be an attorney or a company providing estate planning software, should include the statutory text as a “best practice.”261
Arizona, Florida, and Nevada build in protection for the electronic will through the rules that govern the qualified custodian, both the qualifications to serve as a qualified custodian and the requirements for maintaining custody of the will.262 An advantage of using a qualified custodian to hold a will is that the qualified custodian process creates a chain of custody that should facilitate finding the will after the testator’s death.263 Another advantage is that using a custodian may protect the will from tampering or fraud. A disadvantage is that the requirements make it likely that businesses will serve as qualified custodians, adding cost for testators. If the only way to make a will self-proving is to use a qualified custodian, a testator or the estate will incur additional cost, either by paying for the qualified custodian or because of the need to prove the will after the testator’s death.
Given that remote online notarization should be able to make a will tamper-evident, the concern about protection against tampering may be a minor one. The primary advantage of the qualified custodian may be that family members will be able to locate an electronic will. Although being able to find the will is important, a requirement that imposes additional cost to accomplish that purpose seems unnecessary. Further, if states were willing to create state repositories for wills, the problem of locating the will could be solved.
The lack of a statute will not prevent people from attempting to use electronic tools to prepare and execute wills. A statute can provide rules to serve the evidentiary, channeling, ritual/cautionary, and protective functions that underlie traditional will formalities. A statute may serve to validate a document that a testator intends to be a will. If remote online notarization is used to make the will self-proving, the notarization process will serve to protect the integrity of the will. Without remote online notarization, if the will can be made self-proving only if the witnesses are physically present with the testator when they attest the testator’s signature, then the document should be as well protected with respect to capacity and undue influence as a non-electronic document. In other circumstances—remote witnesses without remote online notarization or a lack of witnesses—traditional wills law can apply. A court will need to determine whether the will was properly executed, and in the case of a defect in execution, a court will have to decide whether the testator’s intent is clear enough to merit application of harmless error to excuse the defect.
No statute can solve all of the problems that may occur. An electronic will might not be found when the testator dies.264 Changes in technology might render a will stored electronically unreadable. An attempt to require a single authenticated copy of a will stored by a single custodian might protect against these concerns, but the risk of invalidating wills executed with testamentary intent is too great to make additional restrictions useful.
The E-Wills Act balances the desire to protect a testator’s intent with the desire to protect the testator from abuse and the will from tampering. Remote online notarization provides a high level of protection for electronic documents and should be encouraged. Harmless error will allow a court to consider whether in an individual case, the evidence clearly and convincingly shows that a decedent intended a document to be the decedent’s will. The E-Wills Act as drafted, including the requirement of remote online notarization for remotely attested wills and the harmless error provision, provides a good option for state legislatures to consider.
1. All Uniform Law Commission (ULC) Drafting Committee meetings are open meetings, and all memoranda distributed to committee members are available on the ULC web page for the E-Wills Act. No official minutes of the committee meetings exist. Descriptions in this Article of discussions of the Drafting Committee and reasons for decisions made by the committee are based on the author’s recollections. This Article reflects the author’s view of the Drafting Committee deliberations and is not an official report of the committee.
2. Acts adopted by the ULC are often referred to by acronym, but the Drafting Committee of the E-Wills Act decided to use “E-Wills Act” rather than UEWA as a way to refer to the Act. See Unif. Elec. Wills Act, Prefatory Note at 2 (Nat’l Conference of Comm’rs on Unif. State Laws 2019) [hereinafter E-Wills Act].
3. In addition to the four states that had enacted electronic wills legislation by 2019, California (A.B. 1667, 2019–2020 Leg. Reg. Sess. (Cal. 2019); A.B. 3095, 2017–2018 Leg. Reg. Sess. (Cal. 2018)), the District of Columbia (Council B22-0169, 22nd Council (D.C. 2017)), New Hampshire (S.B. 40, (N.H. 2017)), Texas (H.B. 3848, 86th Reg. Sess. (Tex. 2019)), and Virginia (H.B. 1643, (Va. 2017)) had considered bills related to electronic wills. See E-Wills Act, Prefatory Note at 2.
4. See Nev. Rev. Stat. § 133.085. All state statutory citations in this Article refer to the current statute unless otherwise indicated. The same applies to state regulations and ordinances.
5. See Ariz. Rev. Stat. Ann. § 14-2518; Ind. Code § 29-1-21-1.
6. See Fla. Stat. §§ 732.523, 732.524.
7. Anecdotally, the author has seen messages every week or two on the Oregon State Bar’s estate planning listserv posted by lawyers trying to locate a decedent’s will for a client.
8. See infra Part III.C.
9. See E-Wills Act, Prefatory Note at 2.
10. See id.
11. The E-Wills Act defines electronic will as a will executed in compliance with Section 5(a) of the Act. See E-Wills Act § 2(3). The enacted statutes define electronic will similarly. See Ariz. Rev. Stat. Ann. §§ 14-1201(21) (a will “executed and maintained on an electronic medium”), 14-2518 (a will executed in compliance with the provisions of the statutes); Fla. Stat. § 732.521(4); Ind. Code § 29-1-21-1 (“wills that are prepared and signed electronically”); Nev. Rev. Stat. § 133.085(1).
12. A 2018 Note in the Harvard Law Review points out that “electronic wills” might be divided into three categories of wills: “offline electronic wills, online electronic wills, and qualified custodian electronic wills.” What Is An “Electronic Will, Harv. L. Rev. 1790, 1791–92 (2018). The author of the Note describes an offline electronic will as a will created and kept on the testator’s electronic device and “typically never printed, traditionally attested, or uploaded onto a website.” Id. at 1792. An online electronic will is an electronic will that involves a private actor such as a technology company and that is stored by the private actor. See id. And a qualified custodian will is a will that is created, executed, and stored with the assistance of a third party regulated under state rules. See id. The Note describes an offline will as not attested and similar in that way to a holographic will. See id. at 1797–99. Yet some offline wills are attested. See id. The will of Javier Castro was attested, see infra Part VI.A, and one can imagine witnesses adding their typed “signatures” to an offline will. Perhaps a fourth category for attested offline wills should be added. See id. at 1796. As the Note’s author comments, each category raises different questions.
13. See Unif. Elec. Transactions Act § 7(a) (Nat’l Conference of Comm’rs on Unif. State Laws 1999) [hereinafter UETA].
14. See UETA § 3(b). UETA applies only to electronic signatures and electronic records that relate to a transaction.
15. See Unif. Law Comm’n, Electronic Transactions Act, (Feb. 16, 2020), https://www.uniformlaws.org/committees/community-home?CommunityKey=2c04b76c-2b7d-4399-977e-d5876ba7e034 [https://perma.cc/7WKJ-RRVR]. As of February 16, 2020, only Illinois, New York, Washington, and Puerto Rico had not yet adopted UETA. See id.
16. See 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, 1957–59 (2016) (stating that “the digitization of society is quickly replacing (and in many areas has already replaced) paper with electronics as the new norm”); David Horton, Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C.L. Rev. 539, 564–65 (2017) (describing the increasing use of smartphones, social media, and online financial services as influencing the interest in electronic wills).
17. See Electronic Signatures in Global and National Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000) [hereinafter the E-Sign Act].
18. See E-Sign Act §§ 102(a)(2)(A), 103(a)(1).
19. The Wills, Codicils, and Testamentary Trusts Exception to the Electronic Signatures in Global and National Commerce Act, 67 Fed. Reg. 63,379, 63,381 (Oct. 11, 2002).
20. See Willing.com, Modernizing the Law of Will Execution (on file with author), at 19 (discussing the use of electronic beneficiary designations by large financial institutions and stating, “In fact, the use of electronic designations for deathtime transfer is not only legal, but also a widely accepted practice.”) [hereinafter Willing.com White Paper].
21. Gürer, supra note 16, at 1980 (footnotes omitted).
23. Jeffrey S. Dible reports that as late as 2010 or 2011, most customers received their printed wills by mail. See Jeffrey S. Dible, The 2018 Indiana Electronic Wills & Trusts Act: Practical Answers to Some Questions, Indiana Continuing Educ. F., 45th Ann. Midwest Est., Tax & Bus. Plan. Inst. (June 7, 2018) at 23 (on file with author). He adds:
There is some anecdotal evidence that a significant percentage of customers of LegalZoom- or Willing-type vendors do not go on to sign their documents, and this phenomenon was one “driver” of the vendors’ quest to legalize and to market electronic signing and cloud-based document storage, to make it easier for customers to sign their documents.
Id. Litevich v. Probate Court, No. NNHCV126031579S, 2013 WL 2945055, at *2 (Conn. Super. Ct. May 17, 2013) provides an example of the problem. Carole Berger purchased a will from Legalzoom, but although the printed copy arrived at her house, she did not execute it before her death. See id. In her case, she intended to do so, but erroneously thought she needed to have her signature notarized for the will to be effective. See id. She lost capacity before a friend was able to locate a notary. See id.
24. Willing.com “drafted and pushed” the first electronic wills bill in Florida, which passed the legislature in 2017. See Dan DeNicuolo, The Future of Electronic Wills, 38 Bifocal 75, 78 (2017). The Governor vetoed that bill, and a revised bill was enacted in 2019. Sarah S. Butters & Jenna G. Rubin, Danger Will Robinson: The New Frontier of Remote Online Notarization and Electronic Wills, 93 Fla. B.J. 30, 31 (2019); see also Dible, supra note 23, at 4–5 (saying that the Bar developed a Task Force that drafted a bill to avoid having “commercial players” such as Willing.com push bills drafted by those commercial entities).
25. See Gürer, supra note 16, at 1981–82 (“But no new innovation comes without skepticism. . . . And such skepticism is amplified in areas where more than the status quo could change, such as in the legal system where people’s assets and livelihoods are at stake.”).
26. See Michael J. Millonig, Electronic Wills: Evolving Convenience or Lurking Trouble?, 45 Est. Plan. 27 (2018).
27. See id.
28. See id. at 28–29.
29. See id. at 29.
30. See id. at 32 (“Fraud or undue influence can be perpetrated much more easily in the confines of someone’s home as opposed to the formality of going to a lawyer’s office.”).
31. See id.
32. See id.
33. See id.
34. Id. The Drafting Committee heard this concern from litigators who handle will contests and like to be able to examine witnesses to a will’s execution.
35. See id. at 34–35.
36. See id. at 33–34.
37. See Scott S. Boddery, Electronic Wills: Drawing a Line in the Sand Against Their Validity, 47 Real Prop. Tr. & Est. L.J. 197, 206–7 (2012). Boddery suggests using the harmless error doctrine to validate electronically executed documents. See id. at 211–12.
38. See id. at 206–07.
39. See E-Wills Act, Prefatory Note at 2.
40. See id.
41. See id.
42. See id.
44. See id.
45. See E-Wills Act § 5 cmt.
46. See id.
47. See id.
48. See E-Wills Act, Prefatory Note.
49. See id.
50. See id.; John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 492–97 (1975) (citing first Lon Fuller, Consideration and Form, 41 Colum. L. Rev. 799, 801 (1941), which discussed the channeling function in connection with contract law; then citing Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 5–13 (1941), which identified the other functions).
51. See Langbein, supra note 50, at 492–93.
52. See id.
53. See Margo H.K. Tank, R. David Whitaker & Andrew W. Grant, Remote Online Notarization is Here to Stay, A.B.A Banking L.J. (Jul. 1, 2019), https://www.americanbar.org/groups/business_law/publications/committee_newsletters/banking/2019/201907/fa_2/ [https://perma.cc/9UXP-JD87]. In order for a notary to use remote online notarization (RON), the state in which the notary is located must authorize RON, and the notary must comply with requirements related to authentication and record keeping. See infra Part VII.A.
54. See E-Wills Act § 8 cmt.
55. For further discussion of the channeling function, see Langbein, supra note 50, at 493–94.
56. See id. at 495.
57. See id. at 496.
58. See Restatement (Third) of Prop.: Wills & Donative Transfers §§ 8.1 (Mental Capacity), 8.2 (Age), and 8.3 (Undue Influence, Duress, or Fraud) (Am. L. Inst. 2003).
59. See E-Wills Act § 3 cmt.
60. See infra Part VII.A.
61. See E-Wills Act § 3 cmt.; Fla. Stat. § 695.28(3):
This section [providing for the recording of electronically executed documents] does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or any other basis not in the nature of those matters described in subsection (1).
62. See E-Wills Act § 3 cmt.
63. See Restatement (Third) of Prop.: Wills & Donative Transfers § 8.3.
64. See id. §§ 8.1, 8.2.
65. See id. § 3.1 cmt. g (“To be a will, the document must be executed by the decedent with testamentary intent, i.e., the decedent must intend the document to be a will or to become operative at the decedent’s death.”).
66. See E-Wills Act § 3.
67. See Restatement (Second) of Prop.: Wills & Donative Transfers § 33.1 cmt. b.
68. See id. § 3.1 cmt. e.
69. See id.
70. See Fla. Stat. § 732.522(4) (requiring that the instrument to be deemed executed in Florida must state “that the person creating the instrument intends to execute and understands that he or she is executing the instrument in, and pursuant to the laws of, this state”); Nev. Rev. Stat. § 133.088(1)(e) (stating that “the document shall be deemed to be executed in this State” if certain requirements are met, even if the testator is not within the state).
71. See E-Wills Act § 4.
72. See id.
73. See id. § 4 cmt.
74. See id.
75. See id.
76. See id. § 4.
77. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. e (Am. L. Inst. 1999).
78. See id.
79. See Ariz. Rev. Stat. Ann. § 14-2506; Ind. Code § 29-1-5-5.
80. Indiana uses the term “actually present” and defines it to mean physically present, without the use of audio, visual, or other technology to create presence. See Ind. Code §§ 29-1-5-5, 29-1-21-3(1).
81. See Ariz. Rev. Stat. Ann. § 14-2506.
82. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. i.
83. See id. The comment to Unif. Prob. Code § 2-502 explains that the writing can be “any reasonably permanent record . . . .” Unif. Prob. Code § 2-502 cmt. (Unif. L. Comm’n) (amended 2008).
84. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. i. A farmer trapped under a tractor in an accident scratched his will on the tractor before he died from his injuries. The court allowed the will. See Re Harris Estate (July 13, 1948), Kerrobert, SK 1902 (Surr. Ct). For more details about this case, see Geoff Ellwand, An Analysis of Canada’s Most Famous Holograph Will: How a Saskatchewan Farmer Scratched His Way into Legal History, 77 Sask. L. Rev. 1, 2 (2014). Arizona uses the term “paper will” in its statute to distinguish the requirements for a paper will from those for an electronic will. Although the statute uses the word paper, the term “paper will” is defined to mean “a testamentary instrument that is executed and maintained on a tangible medium . . . .” See Ariz. Rev. Stat. Ann. § 14-1201(43). Presumably, a will executed on a tractor fender would meet the definition of “paper will” and be given effect if the other execution requirements were met.
85. No. 2013ES00140 (Ohio Ct. Com. Pl. Prob. Div. June 19, 2013).
86. See id.
87. See id.
89. See id.
90. See id.
91. See id.
92. See In re Estate of Horton, 925 N.W.2d 207, 207 (Mich. Ct. App. 2018).
93. See id.
94. See id. at 212.
95. See id. See infra Part IX for a discussion of Horton and the harmless error rule.
96. See Horton, 925 N.W.2d at 211–15.
97. E-Wills Act § 5(a)(1).
98. Id. § 2(4).
99. The Act’s Interpretation Act defines a document to include any disc, tape, or other article, or any material from which writings are capable of being produced or reproduced, with or without the aid of another article or device. See Radford v. White  QSC 306 (Austl.) (citing earlier cases to hold that a video recording that attempted to create a will was a document); In the Estate of Leslie Wayne Quinn  QSC 99 (Austl.); see also Alan Yazbek v Ghosn Yazbek & Anor  NSWSC 594 (text on a laptop computer); In re Yu,  QSC 322 (Austl.) (text on an iPhone).
100. See E-Wills Act § 5 cmt.
101. See E-Wills Act, Prefatory Note.
102. See id.
103. E-Wills Act § 5.
104. Id. § 5 cmt.
105. See Dible, supra note 23, at 3.
107. 134 S.W.3d 830, 830 (Tenn. Ct. App. 2003).
108. See id. at 830.
109. See id. at 830–31.
110. See id. at 831.
111. See id. at 834.
112. Id. at 833 (citing Tenn. Code Ann. § 1-3-105(27) (1999)).
113. Will execution statutes have permitted a testator to sign by using a mark or some other symbol as a signature, to protect people who are illiterate and sign using an “x.” See id.; Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. j (Am. L. Inst. 1999).
114. See In re Estate of Horton, 925 N.W.2d 207, 209 (Mich. Ct. App. 2018).
115. See id. at 212 (focusing on the application of the harmless error statute and the need to determine whether the “decedent intended for the electronic document in question to constitute his will”).
116. See Anne Trubek, The History and Uncertain Future of Handwriting 77 (Bloomsbury 2016), (cited in Ewen Hosie, The Uncertain Future of Handwriting, BBC Future (Nov. 8, 2017), https://www.bbc.com/future/article/20171108-the-uncertain-future-of-handwriting [https://perma.cc/9AAL-76AS]); NPR, The History of Signatures and Their Present Relevance, Interview of Tamara Plakins Thornton by Sacha Pfeiffer (Nov. 25, 2018), https://www.wbur.org/npr/670631106/the-history-or-signatures-and-their-present-relevance [https://perma.cc/KH6N-ENEW] (commenting that beginning in the mid-1800s the legal system viewed a signature as a distinctive biomarker, but that the requirement of a signature is changing).
117. E-Wills Act § 2(5).
118. See id. § 5 cmt.
119. See id. The definition of sign says that the action must be taken “with present intent to authenticate or adopt a record . . . .” Id. § 2(5). For an argument that courts should use momentum theory to permit probate of a will that lacks the testator’s signature but shows evidence that the testator assented to the document as the testator’s will, see David Horton, Wills Without Signatures, 99 B.U.L. Rev. 1623, 1663–75 (2019).
120. See Dible, supra note 23, at 11–12.
122. See id. at 12.
123. See id. The E-Wills Act does not require a digital signature. See E-Wills Act § 5; see also Fla. Stat. § 732.521(3) (defining “electronic signature” to mean “an electronic mark visibly manifested in a record as a signature and executed or adopted by a person with the intent to sign the record”).
124. See Ariz. Rev. Stat. Ann. § 14-1201(20) (defining “electronic signature”).
126. See id. § 14-2518(a).
127. See Fla. Stat. § 736.0403(2)(b).
128. See Unif. Prob. Code § 2-503 (amended 1997) cmt.
129. See id.
130. See id.
131. See id. § 2-502(a)(3)(B).
132. See id. § 2-502(a) cmt.
133. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1, § 3.1 cmt. o (Am. L. Inst. 1999); 20 Pa. Cons. Stat. § 2504.1.
134. See 20 Pa. Cons. Stat. § 3132.1.
135. See E-Wills Act § 5 cmt.
136. The Drafting Committee discussion compared the lack of any useful insights from staff members of a law firm who witness many wills a year, with minimal contact with the testators, with reports from estate litigators about the benefits of being able to question witnesses when a dispute concerning a will arises. See id.
137. See id.
138. See id. § 5(a)(3). A state can permit notarization in lieu of attestation.
139. For a discussion of harmless error, see infra Part IX.
140. See E-Wills Act § 5(a)(3).
141. See infra Part VII.A.
142. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. p (Am. L. Inst. 1999).
143. See id.
144. See id.
145. See E-Wills Act § 5(3).
146. Id. § 2(2).
147. See id. § 2(2) cmt.
148. See id.
149. See id.
150. See id.
151. See Ariz. Rev. Stat. Ann. § 14-2518(A)(3)(a).
152. See Ind. Code § 29-1-21-6(A)(1).
153. See Dible, supra note 23, at 10.
155. See Nev. Rev. Stat. § 133.085(1)(b).
156. Id. § 133.085(5)(a).
157. See id. § 133.085(1)(b).
158. See id.
159. See id. § 133.085(1).
160. Fla. Stat. § 732.522(2).
161. See id. § 732.522(2)(c).
162. See id. § 732.522(2)(d).
163. See id. § 732.522(2)(b).
164. See E-Wills Act § 1 cmt.
165. Fla. Stat. § 732.522(3).
166. See id. § 415.102(28). Florida defines a vulnerable adult as “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” Id.
167. Id. § 415.102(28).
168. See E-Wills Act § 8.
169. The self-proving affidavit creates a conclusive presumption that the signature requirements were met and a rebuttable presumption that other requirements for a valid will were met. See Restatement (Third) of Prop.: Wills & Donative Transfers § 3.1 cmt. r (Am. L. Inst. 1999).
170. See E-Wills Act § 8.
171. See id.
172. See id. § 8(b)(1).
173. See id. § 8(b)(2).
174. See id. § 8(b)(1).
175. See id. § 8 cmt.
176. See Rev. Unif. Law on Notarial Acts § 14A (Nat’l Conference of Comm’rs on Unif. State Laws 2018).
177. See id.
178. See Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L.J. 855, 898 (2020).
179. See Unif. Prob. Code § 2-504(b).
180. See E-Wills Act § 8.
181. Id. § 8 cmt.
182. See id.
183. See id. § 8.
184. See Ariz. Rev. Stat. Ann. § 14-2519; Fla. Stat. § 732.523(2); Nev. Rev. Stat. § 133.086(1).
185. See Ariz. Rev. Stat. Ann. § 14-2519; Nev. Rev. Stat. § 133.086(1).
186. See Ariz. Rev. Stat. Ann. § 14.2520(1)-(2); Nev. Rev. Stat. § 133.320(1) (stating that the will’s custodian cannot be an heir, beneficiary, or devisee).
187. See Ariz. Rev. Stat. Ann. § 14-2521(A); Nev. Rev. Stat. § 133.300(1).
188. Ariz. Rev. Stat. § 14-2520(3); Nev. Rev. Stat. § 133.320(2).
189. See Ariz. Rev. Stat. Ann. § 14-2520(4); Nev. Rev. Stat. § 133.320(3).
190. See Ariz. Rev. Stat. Ann. § 14-2521; Nev. Rev. Stat. § 133.310. The custodian can either transfer the will to another qualified custodian, with an affidavit setting out the chain of custody, or can notify the testator that the custodian will cease acting as custodian in thirty days and provide the testator with all documentation related to the will, including a certified paper original of the will.
191. See Fla. Stat. § 732.523(2).
192. See id. § 732.524(1).
193. Id. § 732.524(2)(a). The requirements are specific:
(a) In the course of maintaining custody of electronic wills, regularly employ a secure system and store in such secure system electronic records containing:
1.. Electronic wills;
2.. Records attached to or logically associated with electronic wills; and
3.. Acknowledgments of the electronic wills by testators, affidavits of the witnesses, and the records described in s. 117.245(1) and (2) which pertain to the online notarization.
194. See id. § 732.524.
195. See id. § 732.525(1).
196. See Ind. Code § 29-1-21-4.
197. See id.
198. See Restatement (Third) of Prop.: Wills & Donative Transfers § 4.1(a) (Am. L. Inst. 1999).
199. See E-Wills Act, Prefatory Note.
200. See E-Wills Act § 7(b)(1).
201. See id. § 7 cmt.
202. See id.
204. See id.
205. See id.
206. See id.
208. See id. § 7(b)(2).
209. See id. § 7 cmt.
210. See generally Restatement (Third) of Prop.: Wills & Donative Transfers § 4.1 (Am. L. Inst. 1999).
211. See E-Wills Act § 7 cmt.
212. See Restatement (Third) of Prop.: Wills & Donative Transfers § 4.1 cmt. f.
213. See id. § 4.1 cmt. j.
214. See E-Wills Act § 7 cmt.
215. See id.
216. See Fla. Stat. § 732.506.
217. Ariz. Rev. Stat. Ann. § 14-2522 (“cancel, render unreadable, or obliterate”); Fla. Stat. § 732.506 (“deleting, canceling, rendering unreadable, or obliterating”); Nev. Rev. Stat. § 133.120(2)(b) (“cancelling, rendering unreadable or obliterating the will”).
218. See Ariz. Rev. Stat. Ann. § 14-2507(A)(2); Nev. Rev. Stat. § 133.120(2)(b)(1).
219. See Ariz. Rev. Stat. Ann. § 14-2522(C); Nev. Rev. Stat. § 133.120(2)(b)(2).
220. See Ariz. Rev. Stat. Ann. § 14-2519 (2019); Nev. Rev. Stat. § 133.086(1)(b).
221. See Ind. Code § 29-1-21-8.
222. See id. § 29-1-21-8(c).
223. Id. § 29-1-21-6(b) (containing language that the statute says should be included with an electronic will as a best practice: “If you are holding the electronic record for your electronic will on your own computer or digital storage device and not making use of a third party custodian or online storage or cloud based document storage service to store or safeguard your electronic will, you may personally delete permanently or make unreadable the electronic record associated with your electronic will.”). Indiana even codifies dependent relative revocation for electronic wills. See id. § 29-1-21-17(d).
224. Id. § 29-1-21-8(b).
225. See Unif. Prob. Code § 2-503 (2013); Restatement (Third) of Prop.: Wills & Donative Transfers § 3.3 (Am. L. Inst. 1999).
226. Unif. Prob. Code § 2-503; Restatement (Third) of Prop.: Wills & Donative Transfers § 3.3.
227. See Unif. Prob. Code § 2-503; Restatement (Third) of Prop.: Wills & Donative Transfers § 3.3; see also In re Estate of Boysen, 441 P.3d 633, 635–36 (Or. Ct. App. 2019) (remanding a case with a direction to focus on the decedent’s intent at the time the document was created).
228. For discussions of the development of the harmless error doctrine, see Unif. Prob. Code § 2-507 cmt; Restatement (Third) of Prop.: Wills & Donative Transfers § 3.3; John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion, 38 Adel. L. Rev. 1 (2017); John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987).
229. Six states follow UPC § 2-503: Hawaii, Haw. Rev. Stat. § 560:2-503; Michigan, Mich. Comp. Laws § 700.2503; Montana, Mont. Code Ann. § 72-2-523; New Jersey, N.J. Stat. Ann. § 3B:3-3; South Dakota, S.D. Codified Laws § 29A-2-503; and Utah, Utah Code Ann. § 75-2-503. Four states require the decedent’s signature: California, Cal. Prob. Code § 6110(c)(2); Colorado, Colo. Rev. Stat. § 15-11-503; Ohio, Ohio Rev. Code Ann. § 2107.24(A); Virginia, Va. Code Ann. § 64.2-404. Colorado and Virginia create an exception if two testators sign each other’s will, and Colorado permits proof that the decedent acknowledged the document as the decedent’s will in lieu of the decedent’s signature. See Colo. Rev. Stat. § 15-11-503; Va. Code Ann. § 64.2-404. Ohio adds a requirement that the decedent signed the document in the “conscious presence” of two witnesses, and the statute explicitly excludes telephonic or electronic presence. See Ohio Rev. Code. Ann. § 2107.24(A). Oregon does not require the decedent’s signature but adds other requirements, including notice to heirs and devisees and written findings of fact if the court finds a document to be a will. See Or. Rev. Stat. § 112.238. Pennsylvania has adopted the harmless error doctrine judicially. See Estate of Joseph Kajut, 22 Pa. D. & C.3d 123 (Pa. Ct. Com. Pl. 1981).
230. See In re Estate of Horton, 925 N.W.2d 207 (Mich. Ct. App. 2018).
231. Id. at 209.
232. See id. at 214.
233. Id. at 209.
234. See id.
235. See id. at 212–16.
236. See id. at 213–15.
237. Cf. Litevich v. Prob. Ct., No. NNHCV126031579S, 2013 WL 2945055, at *2 (Conn. Super. Ct. May 17, 2013). Although Connecticut has not adopted the harmless error rule by statute, the proponent of an unsigned electronic will urged the court to adopt the doctrine. The court declined. See id. at 22.
238. See MacDonald v. The Master, 2002 (5) SA 64 (N) (S. Afr.) (discussed in Boddery, supra note 37, at 204–05).
239. See id.
240. See id.
241. See id.
242. See id. In a case not involving a suicide, a South African court admitted as a will a draft will that had been emailed to a beneficiary but not signed. The decedent and beneficiary had planned to leave their estates to each other, the beneficiary had already executed a will carrying out the plan, and then the decedent died unexpectedly before signing the will. The court said the existence of the document on the decedent’s computer matching the emailed document lent an “aura of authenticity” to the will. Van der Merwe v. Master of the High Ct. and Another 2010 (605/09) ZASCA 99 (Sup. Ct. App. S. Afr.) (discussed in Willing.com White Paper).
243. Rioux v. Coulombe (1996), 19 E.T.R.2d 201 (Que. Sup. Ct.).
244. See id.
246. Alan Yazbek v Ghosn Yazbek & Anor  NSWSC 594 (Austl.).
247. In re Yu,  QSC 322 (Austl.).
248. See In re Nichol,  QSC 220 (Austl.).
249. See id.
250. See E-Wills Act § 6.
251. Id. § 6 cmt.
252. See supra text accompanying notes 85–96.
253. The bill authorizing electronic wills in Indiana proposed a registry to contain information about wills although not the wills themselves. According to Dible, the proposal was taken out due to a fiscal note. See Dible, supra note 23, at 17.
254. Ariz. Rev. Stat. Ann. § 14-2520; Fla. Stat. 732.524; Nev. Rev. Stat. § 133.320 (describing the requirements to be a qualified custodian).
255. See Ariz. Rev. Stat. Ann. §§ 14-2520–14-2523; Fla. Stat. §§ 732.523-732.525, 133.300-133.330.
256. See Ariz. Rev. Stat. Ann. § 14-2523; Fla. Stat. § 732.526(2); Nev. Rev. Stat. § 133.340.
257. See Ind. Code § 29-1-21-10.
258. See id. §§ 29-1-21-11 to -16.
259. Id. § 29-1-21-9.
260. Id. § 29-1-21-6(b). This section includes extensive instructions that should be provided to the testator, including information about execution, storage, and revocation of the will.
261. Id. § 29-1-21-6(a).
262. See Ariz. Rev. Stat. Ann. §§ 14-2520–14-2523; Fla. Stat. § 732.524; Nev. Rev. Stat. § 133.320.
263. For example, in Florida a self-proved will must be held by a qualified custodian “at all times before being offered to the court for probate.” Fla. Stat. § 732.523(3).
264. Jeffrey Dible recommends “generating and saving a complete converted copy promptly after e-signing.” Dible, supra note 23, at 15.
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