Electronic Wills: How and Where To Get One?

Estate planning law is slowly but surely catching up to modern technology. 

In most states, electronic wills are paved its way by the latest development. One that recognizes the traditional formalities of a will but in an electronic format is called an electronic will or e-will. Written in an electronic medium, signed and validated electronically is possible in an e-will. 

In 1999, the National Conference of Commissioners of Uniform State Laws (NCCUSL) proposed the Uniform Electronic Transactions Act (“UETA”) in an effort to create nationwide rules for electronic transactions. Since then, 47 states and the District of Columbia adopted this. 

However, to integrate legal documentation with technology on a different level, efforts have also been made. The Act states that it doesn’t apply to a transaction governed by laws on creation and execution of wills, codicils, or testamentary trusts.

To allow the use of electronic records and signature in interstate commerce, Congress enacted the Electronic Signatures in Global and National Commerce Act, L. No. 106-229, 114 Stat. 464 (2000) (“E-sign Act”). For states to modify, limit or supersede the general electronic signature rules of the Act through a statute of which “specifies the alternative procedures or requirement for the acceptance or use (or both) of electronic records or electronic signatures are allowed in E-sign Act’s Section 102(a)(2)(A). But, a statute, regulation, or another rule of law governing the creation and execution of wills, codicils, or testamentary trusts are excluded in Section 103(a)(1) of the Act. 

With the need for formal writing, signature, and attestation by witnesses, e-wills won’t do away.  Those features are resent but the difference is it is electronic instead of paper. 

Under particular circumstances, a few state courts recognized electronic will in recent years. But until the last few months, there hasn’t been any broad recognition of e-wills or a law defining when they will be recognized. 

The Uniform Electronic Wills Act or also known as the E-Wills Act was approved by the Uniform Law Commission (ULC). A group of law professors and practitioners consists of the ULC and they usually draft prototype state laws. Often, after the ULC approves a law, most states adopt it within a few years. Conditions under which electronic commercial contracts would be legally binding but the law specifically excludes wills is provided by the Uniform Electronic Transactions Act that was approved by the ULC in 1999. 

In 2017, the Florida legislature passed an e-will law that’s why they’re considered well ahead of the ULC. But, when they passed it in 2017, the governor vetoes it for not having enough safeguards against frauds. However, in September a new version was enacted and it will go into effect in 2020 in Florida. 

Under either Florida’s law or E-Wills Act, an audio or video recording won’t suffice as an e-will so it must be in a text. Witnesses are required in addition. The option either to allow the witness to require them to be physically resent with the testator at signing or to be remotely located from the testator is given by the uniform law to states. If detailed conditions are met, Florida’s law allows the witnesses to be remote. 

Since the potential for fraud or undue influence is considered to be too great, testators who are considered vulnerable (such as nursing home residents) e-will will not be considered valid. 

Either electronically or the old-fashioned way, an e-will can be revoked or changed once prepared. Scenarios that are considered revocation of a will is by smashing a hard drive or deleting a file, according to the uniform law, but it also depends under what circumstances it is in. 

Even after states adopt their versions of the E-Will Act, it could take a while yet before estate planners adopt e-wills. For example, in Florida’s law, it is required that an e-will be stored by a qualified custodian. It is not sufficient by just saving it to your smartphone, tablet or computer. 

To be a qualified custodian, it takes a significant investment in technology and infrastructure. Probably, most law firms are unwilling or unable to do so. In Florida, until firms provide technology to attorneys to establish themselves as qualified custodians, most estate planning lawyers won’t be able to offer e-wills. 

The qualified custodian requirement is not included in the E-Wills Act.