What Is an Electronic Will?
Not very long ago, all legal documents were printed on paper and signed with a pen. But in today’s world, where we sign commercial contracts, form 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 invalid unless it is in writing, signed by the willmaker, and witnessed by two other people. There is a good reason for these rules: courts need to determine whether a will is authentic after the person who made the will has died. By requiring that a willmaker follow these rules, a court can ensure that the willmaker 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 willmaker’s wishes.
Still, we live in a digital world now. 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 will-maker” 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 will-maker’s presence satisfies the traditional physical presence witnessing requirement.
What States Allow Electronic Wills?
Several states have begun to adopt legislation that explicitly permits electronic wills to answer these questions. Nevada was the first state to pass laws allowing the use of an electronic will. Indiana, Arizona, Florida, Illinois, and Maryland have each enacted legislation to permit electronic wills in recent years. 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 written in some form of text and e-signed is valid; however, audio or video will not be valid unless transcribed before the willmaker 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. Although a state can enact its requirements, the UEWA has no requirements for the custodianship or storage of electronic wills. 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 be 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. Still, 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 willmaker had the mental capacity to execute a will. An electronic will is an enticing invitation to potential heirs to litigate over the estate for people who have considerable money and property or who may be disinheriting a family member.
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, few e-will custodians meet the regulations. Also, questions still exist about what constitutes a revocation of an electronic will. For instance, does delete 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 ensure that your wishes are properly memorialized and carried out.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, which starts at a valuable and educational Family Wealth Planning Session. The Life & Legacy Planning Session will allow you to get more financially organized than you’ve ever been before and make all the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session (aka Family Wealth Planning Session) to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a 15-minute introductory call today.