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“Electronic Will Legislation in the United States,” that’s the subject of today’s ACTEC Trust and Estate Talk. 

Transcript/Show Notes

This is Travis Hayes, ACTEC Fellow from Naples, Florida. Several states have recently enacted electronic will legislation, ACTEC Fellow Professor Adam Hirsch from San Diego, California, is here today to give us a brief rundown of the state of the law of electronic wills in the United States and the estate planning implications of the use of electronic wills. Welcome, Adam.

Current State of E-Wills

Thank you. It’s a pleasure to be here. I’m going to give a brief rundown on the state of the law of electronic wills (“e-wills”) today in the United States. And then, I’ll have a few words to say about their use by estate planners as of the present. So, as of April of 2022, ten American states enabled testators to create formalized wills in purely electronic form which are never reduced to paper. Four follow the Uniform Electronic Wills Act of 2019. Those are: Colorado, North Dakota, Utah, and Washington. And then, six more states have enacted their own non-uniform e-wills acts, and they are: Arizona, Florida, Illinois, Indiana, Maryland, and Nevada. 

More bills are in the works, so it’s a fast-moving story.Six months from now this podcast may very well be out of date. By contrast, only two states today expressly disallow testators from executing e-wills, and those are New Hampshire and Oregon. By statute, both of those states expressly proscribe electronic wills, and then in the remaining 38 states, the issue is unclear. It hinges on what the statute of wills means by the word writing: wills must be in writing. Unfortunately, most states define the word writing vaguely, if at all. And so, I would say that estate planners cannot execute electronic wills safely in any state that does not expressly allow them. 

Obstacles and Risks of E-Wills

Nor can one safely execute an electronic will in one of the validating states for a client domiciled in a different state. Although, 46 states today have choice of law statutes that give effect to wills properly executed in the place where it was executed, even if it fails to conform with the statute of wills in the domicile. All except 11 of those states still require the will at issue to be in writing. And so we are back to square one. If one is practicing in one of the 10 states that do allow e-wills, it’s critical for you to familiarize yourself with the fine points of the statute. Even the four states that have enacted the uniform act tinkered with it to some extent.  And so, in the United States today, no two e-will’s acts are exactly alike. Their salient characteristic is diversity. 

For example, two states require witnesses to be present when an electronic will is executed, the other eight states that validate e-wills permit remote witnessing. Three states require e-wills to be dated, the other seven do not. Three states require unique signatures on an e-will, the other seven permit typed signatures. And so on. So, in a nutshell, that is where the law of electronic wills stands today. As an estate planning matter, I would advise against attorneys using them, even in states that allow them, unless there is no alternative. This cannot be emphasized enough, e-wills implicate serious risks. 

Cyberspace, for one thing, offers a more inhospitable environment for document preservation than physical space. E-wills may get lost when individuals upgrade to new machines or new technologies. Files may get corrupted over time. Survivors may have difficulty locating an e-will file among countless other files. Files may be password-protected and passwords may get lost when the owner of equipment dies. And, finally, there is the risk of hacking, I cannot but imagine that e-wills will present a tempting target for phishing attacks. And then, there is the risk of inadequate proof. 

Here is the scenario that worries me: an e-will is dated on a particular day and metadata shows that the document was modified subsequent to the time when it was executed. Metadata reveals that the document has been changed in some way, but it does not reveal the nature of the change. And so, there is really no way of knowing whether the change has been a valid change or an invalid one. If it’s a partial revocation, it’s a valid change, but if some substantive material has been added to the will, it’s an invalid change. And unless evidence presents itself as to the exact manner in which the will was changed, it seems to me, a court is going to have no choice but to throw the whole e-will out. 

Conclusion and Guidance

In this respect, when it comes to proof of wills, e-wills are “proof, proof.” It’s a serious problem and I fear it is going to throw probate litigators straight into the briar patch. And these are just some of the problems that can occur to me now, I would imagine there are others that we haven’t even thought of yet. And so, ultimately, I would advise caution when it comes to e-wills. Use them if you must, but only as a last resort when emergency conditions leave no alternative. In a word, just because something is new, it’s a shiny new object, does not make it a good idea. And I will close on that note of caution and thank you for your attention.

Thank you, Adam, for discussing electronic will legislation in the United States and the estate planning implications of the use of electronic wills.

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