By: Barry E. Haimo, Esq.
May 9, 2019
Electronic Wills: Are They Coming?
So far, we have we have seen the legal profession make various changes as it tries to keep pace with modern technological advances. Examples of such changes include electronic filing of legal documents, online estate planning, and electronic signing of legal documents. Wills, however, had not fallen into this trend… until now.
Electronic wills are one of the more recent concepts in the world of estate planning. Generally, electronic wills are wills that have been signed and stored digitally.
Instead of a hard copy document signed in ink, the testator creates and signs his or her will electronically. But it doesn’t stop there. The witnesses will similarly sign this will electronically, and the notary will electronically notarize it.
Quite a difference from the time when everyone had to be in the same room together. It certainly seems like a time-saver… but is it legal?
Will Electronic Wills Be Valid in Courts?
The validity of a will today depends on state law and how the court interprets that law.
Let’s consider one case that was decided in 2018 in New Jersey. In 2001, Mr. E. Warren Bradway had written his will on paper, signed it, and had it witnessed and notarized in ink – as is the norm. Later on, in 2006, he hand-wrote a codicil naming a new beneficiary and executor. However, instead of ink, Mr. Bradway used his own blood to write this codicil.
And so, the original executor and beneficiary went to court questioning the validity of the codicil. The court in its ruling found that Bradway’s use of his own blood was “eccentric,” but since there was clear, convincing evidence that he had written it, this codicil was valid.
If a state court could recognize a will written in blood, then it isn’t so absurd to think that a computer-generated signature could also be recognized as a valid symbol that a testator might use to authenticate his or her will. As a matter of fact, in 2019, a Michigan court, when deciding a case in the matter of the estate of Horton, admitted as a valid will a digital note that was recovered from Horton’s phone.
The Electronic Wills Committee
The Uniform Law Commission, an independent organization that offers advice on state laws, has indeed recognized the trend towards digitalization and has created an electronic wills committee. This committee is tasked with creating a sample law that could be adopted by different states in matters pertaining to electronic wills.
So far, electronic will statutes only exist in Nevada and Indiana. In Arizona, an e-will law is expected to come into effect beginning July 1. In the District of Columbia, there’s electronic will legislation that’s pending. Such legislation was considered but never enacted in several states, including Virginia, New Hampshire, and right here in Florida.
In our state, an e-will bill passed the legislature but was vetoed out by the governor on the grounds of security concerns, as well as the provision that nonresidents of Florida would bring their e-wills to Florida to probate.
What Are the Drawbacks of Electronic Wills?
Electronic wills, or e-wills as they’ve been dubbed, have one major drawback. Online services do not offer the expert legal guidance that one would get by sitting down with an estate planning attorney to discuss an estate plan. Even the ones that offer to connect you with an attorney on the cheap do not provide adequate legal advice and counsel. In addition, the legislation allowing e-wills and e-trusts (that was vetoed by Governor Rick Scott) was riddled with holes that would end in very costly and time consuming litigation, the beneficiaries of which would ultimately be the attorneys that litigate the cases.
A Florida estate planning attorney may, for instance, offer crucial insight on how best to distribute your estate among your beneficiaries so as to avoid family litigation after you are gone. Still, the digital age marches on, and there are sure to be more changes like this as we go forward. The question is going to be how to marry the convenience of the coming age with the professional thoroughness so many people benefit from.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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