Posted by The Life and Legacy Planning Group
What Is an Electronic Will?
It was not very long ago that all legal documents were printed on paper and signed with a pen. But in today’s world, where we sign commercial contracts, create and run businesses, and buy everything from groceries to cars online, it seems almost prehistoric for state laws to require that someone appear in person in front of witnesses to sign a Will printed on paper. Under established law, a Will is generally not valid unless it is in writing, signed by the testator (creator of the Will) and witnessed by two independent people. There is a good reason for these rules: courts need to be able to determine whether a Will is authentic after the person who made the Will has died. By requiring that a testator follow these rules, a court can ensure that the testator had mental capacity when they signed the Will, that they signed it voluntarily (and not under duress or threat), and that the Will reflects the testator’s wishes.
Still, we live in a digital world now, and courts are increasingly being asked to determine whether a Will that was created and stored on a computer, tablet, or cell phone and e-signed (i.e., an electronic will or e-will) meets the traditional requirements of being “in writing” and “signed by the testator” to be valid. And with the COVID-19 pandemic increasing our familiarity with virtual meetings and conversations, the question also arises whether a witness who virtually observed the signing of a Will but was not physically in the presence of the testator satisfies the traditional physical presence witnessing requirement.
What States Allow Electronic Wills?
To answer this question, several states have begun to adopt legislation that specifically permits electronic Wills. Nevada was the first state to pass laws allowing the use of an electronic Will. In recent years, Indiana, Arizona, Florida, Illinois, and Maryland have each enacted legislation to permit electronic Wills. In 2019, the Uniform Law Commission (a nonprofit organization that drafts model state legislation) passed the Uniform Electronic Wills Act (UEWA), a set of model laws for states that may want to enact legislation permitting the use of electronic Wills. The UEWA maintains the traditional formalities of writing, signature, and attestation by witnesses but adapts them to some of the technological advances of the modern age. For example, a Will that is written in some form of text and e-signed is valid; however, an audio or video Will would not be valid unless it was transcribed before the testator signed it. Regarding the requirement that witnesses be physically present, states can enact a version that requires witnesses to be physically present or a version that allows for virtual witnessing. The UEWA has no requirements as to the custodianship or storage of electronic Wills, although a state can enact its own requirements. To date, Colorado, Utah, North Dakota, and Washington have adopted the UEWA in some form. And other states are sure to follow; Massachusetts, the District of Columbia, and the US Virgin Islands have recently introduced the UEWA.
Should I Use an Electronic Will?
Even though your state’s law may allow you to use an electronic Will, there are still some good reasons to stick with the old-fashioned hard-copy Will drafted by an attorney. One reason is that electronic Wills have a greater potential for abuse and the exercise of undue influence, duress, or coercion. Elderly people are already susceptible to such abuse, but the risk is even greater if no one knows who is off-screen directing the elderly person on what to do with their money and property after their death. There is also the risk of increased litigation over whether a testator had the mental capacity to execute a Will. For people who have considerable money and property or who may be disinheriting a family member, an electronic Will is an enticing invitation to potential heirs to litigate over the estate.
In addition, there is still a lot of uncertainty surrounding e-wills. For example, in states such as Nevada, Arizona, and Florida, which have extensive rules about custodianship of a Will, there are few e-will custodians who meet the rules. Also, questions still exist about what constitutes revocation of an electronic Will. For instance, does deleting the Will from your computer constitute revocation?
In any event, for people with minimal amounts of money and property who may not otherwise create a Will, the ease of making an electronic Will simplifies the process. To be sure, this is an area of law that is developing quickly, and electronic Wills may soon become the norm. If you need to create or update your Will, call us. We can discuss the options available to you to make sure that your wishes are properly memorialized and carried out.
Sharon L. Klein, Jenna M. Cohn & Samantha Q. Adams, The Key Estate Planning Developments of 2021, Wealth Management (Dec. 22, 2021), https://www.wealthmanagement.com/estate-planning/key-estate-planning-developments-2021. See also Jennie Lin, What Is an Electronic Will, Nolo, https://www.nolo.com/legal-encyclopedia/what-is-an-electronic-will.html (last visited Feb. 18, 2022).
Electronic Wills Act, Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71#LegBillTrackingAnchor.