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A Brave New (Electronic) Will

September 24, 2020

Will the passage of the Uniform Electronic Wills Act pave the way for electronic wills in Virginia and other states?

Covid-19 update: Since this article was written, the pandemic has caused Virginia practitioners to review and wrestle with Virginia’s requirements for executing estate planning documents. The issues include: paper & ink execution vs. electronic execution, physical witness presence vs. electronic witness presence, and in-person notarization vs. remote notarization. Further muddying the water – Virginia has an electronic notary statute but no electronic Wills statute.  

The legislative committee of the VBA (Wills, Trusts & Estates section) is aware of this and an “e-wills” statute is on its agenda for review.

Courts Approving Various Electronic Writings as Wills

For better or worse, we are living in an age of technology. At our fingertips we have computers, smartphones, tablets and other devices. An estimated 8 billion devices are now connected to the Internet, and Netflix binging has reached 250 million hours per day.[1]  (In case you’re curious, the most-watched show in Netflix history is currently 6 Underground, at 83 million views.)[2]   

The ease and convenience of these devices have given rise to the creation of electronic records purporting to be wills. Below are a few examples where courts have considered such records.

In a 2003 Tennessee case, the testator used a word processing program (e.g., Microsoft Word) to type his will. He then typed his signature in cursive font, in the presence of two witnesses.  He then printed the will (which contained his typed signature) and the two witnesses signed the hard copy. The will was deemed valid.[3]

In a 2013 Ohio case, a will was typed on a Samsung Galaxy tablet and electronically signed by the testator and two witnesses using the tablet’s stylus. The will (as saved on the tablet) was deemed valid and met the statutory requirement to be “in writing.”[4] 

In a 2018 Michigan case, the testator committed suicide – and left a handwritten note directing the recipient to an electronic note on his phone titled “Last Note.” The note included directions for disposing of his property, and was deemed a valid will under Michigan’s harmless error statute.[5] 

States Passing E-wills Legislation

States have been active in recent years in passing e-wills legislation. Nevada, far ahead of the curve, was the first state to modernize the world’s second oldest profession, passing an e-wills statute in 2001 (which it revised in 2017).[6] Recently, Florida, Indiana and Arizona have also passed e-wills legislation. (Indiana’s statute also references electronic powers of attorney and trusts).[7] A number of other states have also considered e-wills legislation, including Virginia, New Hampshire, Texas and the District of Columbia.

The Uniform Electronic Wills Act

This trend toward e-wills caused the Uniform Law Commission (the “ULC”) to begin drafting the Uniform Electronic Wills Act (the “Act”). The Act, approved at the ULC’s annual meeting in July 2019, is relatively short – 12 sections totaling 19 pages, including comments.[8]

The ULC’s webpage describes the Act’s purpose:

The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect . . . Since 2000, the Uniform Electronic Transactions Act (UETA) [which Virginia has enacted at Va. Code Ann. § 59.1-479 et seq.] and a similar federal law, E-SIGN, have provided that a transaction is not invalid solely because the terms of the contract are in electronic format. But UETA and E-SIGN both contain an express exception for wills . . . Under the new Electronic Wills Act, the testator’s electronic signature must be witnessed contemporaneously . . . States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.[9] 

Key Provisions of the Uniform Electronic Wills Act

Execution and Self-Proving of Electronic Wills

Sections 5 and 8 of the Act set forth requirements for the execution and self-proving of e-wills; these echo the formalities of traditional wills.  

Per the Act, an e-will must:

  • Be readable as text (no audio wills, no “home video” wills);
  • Be signed by the testator, or on behalf of the testator by someone in the testator’s physical presence; and
  • Be signed by two witnesses, in either the physical or electronic presence of the testator, or by a notary.

In addition, to be self-proving, the e-will and self-proving affidavit must be executed simultaneously. 

Notably, the Act diverges from traditional will law in the timing of the self-proving affidavit; Virginia (and many other states) allow a traditional will to be self-proved “at any subsequent date,”[10] but the ULC’s comment to Section 8 of the Act provides that the Act “does not permit the execution of a self-proving affidavit for an electronic will other than at the time of execution of the electronic will.” This is intended to help mitigate the risk of a fraudulent e-will signature. The Act also states that extrinsic evidence may be used to establish the testator’s intent in signing the e-will, e.g., a picture or audio-visual recording of the testator signing his e-will.

What is an electronic signature?

What constitutes a “signature” in an electronic document? Let’s review the two relevant bodies of law: the Act (remember, Virginia has not yet adopted it) and Virginia’s UETA. The Act’s definition of “sign” broadly provides “to execute or adopt a tangible symbol . . .”[11] The comments to Section 5 of the Act state that a “typed signature in a cursive font, or a pasted electronic copy of a signature” would both suffice, and “as e-signing develops, other types of symbols or processes may be used . . .”

Virginia’s UETA defines an electronic signature as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”[12]

Electronic vs. Physical Presence of Witnesses

The ULC’s drafting committee weighed this issue and decided in favor of ensuring convenience and flexibility with remote attestation. In a draft of the Act dated January 22, 2019, the committee noted a few reasons why the physical presence of witnesses may not be critical: 1) will substitutes don’t typically require witnesses (e.g., beneficiary designations); 2) law firm employees witness numerous wills and may be unable to recollect an individual testator’s capacity; and 3) the harmless error doctrine allows a court to give effect to a will not properly witnessed.[13] (Virginia has adopted the harmless error doctrine at Va. Code Ann. § 64.2-404).

Choice of Law

Section 4 of the Act “reflects the policy that a will valid where the testator was physically located should be given effect using the law of the state where executed. The Act does not require a state to give effect to a will executed by a testator using the law of another state unless the testator resides, is domiciled, or is physically present in the other state when the testator executes the will.”

Example – Choice of Law

Harry lives in Massachusetts, a state which has not enacted an e-wills statute. Harry, while in Massachusetts, remotely executes an e-will under Nevada law. That e-will will be valid in Nevada (which allows a remote testator), but not in Massachusetts. However, if Massachusetts enacts e-will legislation, Harry’s e-will should then be valid in Massachusetts. Alternatively, if Harry had traveled to Nevada and executed an e-will while physically present in Nevada, his e-will should also be valid in Massachusetts, because it was valid in the state in which he physically signed the will.

What if Harry had been a Nevada resident, executed a valid e-will and then moved to Massachusetts? Massachusetts should give effect to his e-will, because it was validly executed when Harry was in Nevada.

Revocation

Like traditional wills, e-wills may be revoked by a subsequent will or by a “physical act” of revocation upon the e-will. The preponderance standard applies as to intent to revoke. The Act discusses, but does not define, a “physical act,” and it provides a few examples in its comments: deleting a file with the “click of a mouse,” “smashing a flash drive with a hammer,” requesting a third party custodian of the e-will to delete the e-will, and printing a paper copy of the e-will and writing “revoked” on it.

Revocation of One Applies to All

The Act follows traditional wills law and provides that revocation of one e-will original is effective to revoke all identical e-wills, just as revocation of an original traditional will revokes all duplicate originals.

Certification of Paper Copy

Section 9 of the Act allows an individual to reduce an electronic will to paper if the individual certifies the paper copy is complete, true and accurate. This is intended to facilitate the admission of the will to probate.

Electronic Signatures for Revocable Trusts

The Act intentionally does not address revocable trusts, despite their widespread use as will substitutes. In fact, the ULC drafting committee noted in a draft of the Act that the “UETA does not exclude inter vivos trusts, so this Act is limited to wills and does not cover inter vivos trusts or other estate planning documents.”[14]

Can revocable trusts indeed be signed electronically? The ULC drafting committee appears to think so. However, and with due deference to those experts, let’s review the scope of Virginia’s UETA. It provides, “Except as otherwise provided in subsection (b), [which excludes wills, codicils and testamentary trusts] this chapter applies to electronic records and electronic signatures relating to a transaction.”[15] The UETA then defines a “transaction” as “an action or set of actions occurring between two or more persons [including trusts] relating to the conduct of business, commercial, or governmental affairs.”[16]

So, Virginia’s UETA validates electronic signatures relating to the conduct of business, commercial or governmental affairs. The UETA’s definition of “persons” does include trusts. But, is the creation of revocable trusts a “business” or “commercial” affair?  Those terms are not defined in the UETA. Perhaps a future Virginia e-wills bill should clarify that electronic signatures are also valid for revocable trusts.

Virginia’s Efforts to Pass E-Wills Legislation

Two e-will bills have been introduced in Virginia thus far. Both predate the Uniform Electronic Wills Act. HB 1643 was introduced by G. Manoli Loupassi in 2017; and in 2018, HB 1403 was introduced by Jeffrey L. Campbell. Neither bill made it out of committee. Incidentally, both bill sponsors are attorneys, although neither specializes in estate planning.

The bills were similar; below are distinguishing features of the latter bill, HB 1403, as compared to the Act.

HB 1403

HB 1403 defined an electronic will as being “created and maintained in an electronic document.” The e-will must be e-signed by the testator and two witnesses or a notary, in the presence of the testator.[17]

Like the Act, HB 1403 defined “presence” to include participation by audio-visual communication, and it expressly included execution of powers of attorney and advance medical directives.  

HB 1403 added a concept not present in the Act; the e-will, to be self-proving, must be stored until probate with a “qualified custodian” who must be named in the e-will. The qualified custodian must also possess a visual record of the e-will’s execution, and such visual record must also prove the identity of all of the signers of the will and be incorporated as part of the electronic record of the will.

What is a “qualified custodian?” HB 1403’s definition appears to commercialize this position; it bars an heir or beneficiary from serving, and it requires the custodian to “consistently employ, and store electronic documents of electronic wills in, a system that protects electronic documents from destruction, alteration or unauthorized access and detects any changes to an electronic document.”[18]

Much of HB 1403 related to the qualified custodian: who can serve, ceasing to serve, naming successors, providing access to e-wills, destroying e-wills in custody, turning over to probate, etc.

HB 1403 allows a choice for where to probate a will: (1) in the deceased’s city or county of residence or (2) the domicile or registered office of the qualified custodian, if in the Commonwealth.  

Concluding Thoughts and Preparing Your Practice for E-Wills

If e-wills haven’t frightened you into retiring or shifting to personal injury, then consider:

How would e-wills change your estate planning and probate practice? Be prepared for remote witnessing, execution and notarization. What about probate of an e-will? Where can/should an e-will be probated? Could this expand your probate practice?

Could e-wills increase the commoditization of estate planning?  Florida’s e-wills statute passed in part due to efforts of a company called ‘Willing’ (a do-it-yourself online wills company). Its website (willing.com) states one can prepare a “complete estate planning package” and can “start for free, pay only when you print and sign.”

Qualified custodians – business opportunity? This doesn’t appear to be a ready industry. A Google search for “qualified custodian of a will” resulted in no relevant hits. This expertise will need to be developed if e-wills legislation proliferates. Will attorneys fill this role? Some of us already store physical wills; will we want to enter the realm of electronic document storage? Call your insurance carrier . . .

Encourage your staff to obtain their electronic notary commission, as per Va. Code Ann. § 47.1-6.1. Traditional notaries in Virginia may apply for this.[19]  The Virginia Electronic Notarization Assurance Standard, published in 2013, provides guidance on electronic notarization, including notarization by webcam. It allows a notary to notarize without being in the physical presence of the signer.[20]  

Mark Pascucci’s practice concentrates on estate planning and administration, family business succession, corporate transactions and elder law. His representation of individuals ranges from complex tax planning for high net worth clients to advice on elder law and public benefits for elderly and disabled clients. He has written and lectured on these subjects for continuing education for lawyers, accountants and other professionals. Mark also represents individuals and entities in controversies with the IRS. Prior to earning his law degree at William & Mary, Mark practiced as a Certified Public Accountant in Boston. Mark’s goal is to consistently provide high quality service to his clients.

 

[1] See Technology Facts and Stats by Orleans Marketing, https://orleansmarketing.com/35-technology-facts-stats/ (last visited February 21, 2020).

[2] See Every Viewing Statistic Netflix Has Released So Far (February 2020), What’s on Netflix, https://www.whats-on-netflix.com/news/every-viewing-statistic-netflix-has-released-so-far-february-2020/ (last visited February 21, 2020). 

[3] Taylor v. Holt, 134 S.W.3d 830 (Tenn. 2003).

[4] In Re: Estate of Javier Castro, Deceased, No. 2013ES00140 (Ohio Ct. Com. Pl. June 19, 2013).

[5] In re Estate of Horton, 925 N.W.2d 207 (Mich. 2018).

[6] Nev. Rev. Stat. § 133.085 (2017).

[7] Ind. Code § 29-1-22-1 (2019).

[8] The Uniform Electronic Wills Act as promulgated by the National Conference of Commissioners on Uniform State Laws on November 20, 2019 is available online at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=8529b916-8ede-67e4-68eb-e0f7b1cb6528&forceDialog=0 (last visited February 21, 2020).    

[9] https://www.uniformlaws.org/committees/community-home?communitykey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71&tab=groupdetails (last visited February 21, 2020). 

[10] Va. Code Ann. §§ 64.2-452 and 64.2-453.

[11] Unif. Electronic Wills Act § 2.

[12] Va. Code Ann. § 59.1-480.

[13] Unif. Electronic Wills Act (Draft, January 22, 2019).

[14] Id.

[15] Va. Code Ann. § 59.1-481(a).

[16] Va. Code Ann. § 59.1-480. 

[17] HB 1403: Electronic Wills, V.A. Legis. (2018).

[18] Id.

[19] See A Handbook for Virginia Notaries Public, published by the Office of the Secretary of the Commonwealth, available online at https://www.commonwealth.virginia.gov/media/governorvirginiagov/secretary-of-the-commonwealth/pdf/2017-December-15-revised-Handbook-.pdf (last visited February 21, 2020). 

[20] See The Virginia Electronic Notarization Assurance Standard, published by the Secretary of the Commonwealth, available online at https://www.sos.state.co.us/pubs/newsRoom/remoteNotarization/2017/VirginiaElectronicNotarizationAssuranceStandard.pdf (last visited February 21, 2020).