Proving a Will in the Age of COVID

Aug 10, 2021 | General Estate Planning, Podcasts, Technology Recommendations

“Proving a Will in the Age of COVID,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Susan Snyder, ACTEC Fellow from Chicago. Electronic wills are new everywhere, but are especially new in Florida. To offer us an education on electronic wills we are joined today by ACTEC Fellows Bill Boyes of Palm Beach Gardens, Florida and Tom Karr of Miami. Welcome Bill and Tom.

Hello, this is Tom Karr. And thank you for that introduction and welcome to Bill Boyes and Tom Karrs’ podcast on “Proving a Will in the Age of COVID.” Well, I certainly hope it’s not the age of COVID. I hope it’s the short time of COVID, but it does seem like it has been an age. Or, I think a better title for this one is, “What’s all this about electronic wills?” Well, when Bill and I agreed to do this, we sent out a survey to some of our ACTEC Fellows on the Fiduciary Litigation Committee- actually to all of them- seeking their experiences so that we could punctuate this presentation with things that they’ve experienced with regards to electronic wills. Because of course electronic wills are becoming something of an item, not just in Florida but in other locations. And we got back nothing. So, I think this is a bit more cutting edge than Bill and I thought it would be. And we hope to give you today our views on the law, as it exists now, and some examples of how it might be applied. And with that, Bill was going to start us off here today with some background and observations on electronic will statutes and the Uniform Act. Then we’re going to talk specifically (and I’ll cover that) about the Florida statute and then, Bill and I are going to come back together with hopefully some fun questions about how that statute might work or not work. Bill, take it away.

Uniform Law Commission’s Electronic Wills Act

Thanks very much, Tom. I appreciate it, love the introduction by the way and all the ”huzzahs” that you’ve given me. Electronic Wills Act (Uniform Law Commission), what is that? Well, basically it’s something that would affect otherwise the statutory requirements of what we historically know as what’s required to have a will disposing of a person’s property after their death. So, historically speaking the electronic will statute, prior to its enactment, every will had to be in writing, signed in by the testator or another person in the testator’s presence. And that’s the express direction of the testator.

The Electronic Wills Act is a template for states to approve the validity of properly executed electronic wills within the restrictions as decreed by the particular statute involved, as that may vary state to state. And of course this is excluding any type of holographic will, enabled as the states may permit under their particular statutes. Prior to any electronic wills statute, the statute to the various states and the case law that had been existence with the intent, let’s keep in mind what the reason for all of this. The intent is to safeguard against fraud, fortune, undue influence in connection with the establishment of the validity of the will.

Under the Uniform Act, states are enabled to determine how many witnesses are required on the electronic document and whether or not a notary is required and whether or not actual physical presence is mandated and the presence of the testator for either witnesses or the notary or whether or not a remote presence of the witnesses or the notary is permitted. (Resource: Emergency Remote Notarization and Remote Witnessing Orders by State)

Historically, this remote witnessing, remote notarization, is something that’s new to us. Take it back 10 years, we didn’t have this. What we had was century’s worth of case law and statutes that enabled one to determine whether or not a document purporting to be a will was in fact, the true and valid last will and testament.

Various states have enacted their own statutes. Remote witnessing is allowed in Florida, Nevada and Indiana. Arizona says no to remote witnessing. What about per the Uniform Act a qualified custodian? Well, certainly the states don’t speak to this at all. Whereas a qualified custodian in Florida, Arizona, Indiana, and Nevada are mandated. The Uniform Act has something that certain of the states do not, which is the “harmless error rule.”

The Uniform Act contains the harmless error rule, which provides for a safe harbor in the event that the electronic will is not executed in strict compliance with the statutory mandates. And the witnessing requirements may be deemed so as to comply, if it is established by, here’s the test, clear and convincing evidence that the intended electronic document is A) The decedents true will, and that B) a revocation or addition or revival of a prior will, even not on electronic will.  Boy, we’re going to have some fun with that on down the road. I’m just going to capsulize some of the statutes of the various states and what they mandate.

How Some States Have Enacted Electronic Wills

Utah says it has to be two witnesses, that they can be remote. There has to be a notary, but there is a?? harmless error rule under the laws of Utah, but no necessitated qualified custodian. North Dakota is exactly the same way. Nevada permits remote witnessing and notaries. There is no harmless error statute, but it does mandate a qualified custodian. A remote witnessing is permitted in Arizona, but there is no standard for the notaries. Harmless error is permitted with the extrinsic evidence requirement. Under Indiana, no harmless error, no qualified custodian. Florida permits remote witnessing and notaries, there are okay. So, your testator, your witnesses, your notary could all be in four different locations. Interesting.

So, what we have here also is under the laws of the state of New York and Governor Andrew Cuomo. He enacted last April, in April of 2020 an executive order, which permitted remote execution of wills. There was one reported case on that it’s in Matter of Ryan. It’s a surrogate’s court out of Broome County, and it’s the only cited authority that we have interpreting some type of electronic will statute. The decedent was actually in the hospital at the time of the execution, but he had communicated his wishes by telephone to his attorney previously. So, the attorney prepares the will and at the time of the signing, the hospital social worker brings the original will to the scene in a sealed envelope and acts as a videographer with her cell phone. At the time the attorney and the witnesses were in the attorney’s office, testator was in the hospital.  And the court found that with those fact patterns on the execution and after the notary transmit electronically the execution video of the document, the decedent died and the court permitted it as a self-proved will in accordance with the governor’s executive order.

There is one other case that I want to bring to your attention very quickly which is something that permits this extrinsic evidence to establish a decedents true will when there is no compliance with the will statute of the state. And that is a Michigan case decided in 2018, it’s In re Estate of Horton, H-O-R-T-O-N, reported 625 Northwest second, 207. And under this case, it was a young man who decided to take his life. He left a handwritten note that was not signed by him, but it was in his handwriting, and it says, “Check my cell phone and there’s an app there. And it says how I want to dispose of my property.”

Well, this guy was under a conservatorship at the time and his ad litem offered that signed document- that handwritten document, not signed- and the electronic app, as the decedent’s true last long testament. Michigan has the statute called the “Estate and Protected Individuals Code,” otherwise known as EPIC. And it requires that there must be liberally construed and applied to promote its underlying purposes, including to discover and make effective decedent’s intent on the distribution of his property after death. And after a trial, the trial court found that it comported with that EPIC statute, and it was established by clear and convincing evidence. And it enabled the decedent’s mother to be eliminated as a beneficiary and instead have his assets pass, as he wished to his siblings. It’s a very interesting safe, that’s a safe harbor on steroids, Tom.

Florida Electronic Wills Statute

So, let’s go talk about the Florida law and a Florida statute, because that of course is what Bill and I are most familiar with being Florida lawyers. And it is very interesting to know a little bit about the history of that statute, because it’s very telling about I think what’s going to happen with statutes going forward or the passage of them. (Electronic Wills in Florida – April 13, 2021 podcast)

Prior to COVID, the real property and probate trust law section of the Florida bar. That’s us pointy headed individuals that go to these meetings four times a year and talk about the statutes and debate them were very much opposed to the statutes. We didn’t want electronic wills. We didn’t want remote witnessing. There were dark mutterings of fraud that would follow and the abuse of elderly. Oh my God, this is not the way we want to do things. We want to do things the way we’ve done them for, as Bill said, hundreds of years. But these Silicon Valley folks came out of nowhere and said, “Wait a second, we’re going to provide you with a method for executing your wills that will get rid of fraud, that will get rid of abuse because everything will be recorded. Everything will be seen. Everything will be on the record.” Maybe, maybe not.

But they did make one point which I think was very valid, which is, it is also making this service a lot more accessible to individuals because if you can do remote witnessing and remote execution, you don’t have to go to some lawyer’s office to get that done. And so, they did have a point. And with that point, they were able to move the Florida legislature to view this very positively, despite the opposition that came from the lawyers that have to deal with this day in and day out. And so, there was a succession of things that happened over the years.

In 2017, the bill didn’t pass because the governor vetoed it. In 2018, it didn’t pass because there was a fight between the House and the Senate in Florida (that’s a whole other story, which is funny). And then in 2019, it finally passes because those kids from Silicon Valley, they’re smart and what they did was, they neutered the whole argument that came out of the probate lawyers by combining the remote notarization with the remote execution of wills. And it made it impossible for the section of the Florida bar to oppose it in any considered way, because we are the real property and probate section. And the real estate lawyers loved remote notarization because of course it’s much more efficient than otherwise things, thousands of miles apart from each other than everybody having to get to a closing. And the probate lawyers be damned, they just had to sit back and let this happen. But of course, they provided their input on the statute. And some would say that input was not very helpful. And let’s talk about that a little bit. But before we do that, let’s just make one more point about this and that’s this, that, it was very interesting to me anyway, that after all of the hoopla of the probated lawyers, we like to call them “the death lawyers,” about why we shouldn’t do this and why we should do it like we’ve always done it for the past 500 or 600 or 700 years is suddenly facing COVID. And when COVID hit, a lot of those people who were so against it were suddenly so for it or at least for some aspects of it. And so, it’s sort of an interesting I think commentary on how principal can be completely overwhelmed by public health emergency in the blink of an eye. And so, I think that that will portend for more of these statutes passing.

But let’s talk a little bit about the Florida statute because now we’re left with this Florida statute, which is interesting because it has two general aspects to it. One, is a chapter of the probate code, and one is a chapter of the notarization code. In other words, you’ve got to toggle back and forth between two sets of statutes in order to understand how, and whether you can actually do this electronic real thing in Florida. It first, it allows of course, has electronic signature. Oh, okay. No big deal. We all know, we’ve probably all done electronic signatures already. And then, what it does, it says now when it comes to remote witnessing, you must do it in accordance with chapter 117, which is, “Oh, you got to go over here to the notarization statute.” And there, what you find is that now the law makes the notaries the supervisors  of the executions of electronic wills. It sets forth specific rules that those people must follow, those notaries, those people that you go to, who asked you for your license and make sure that you look like the person on the it, those people are now going to be the supervisors. I wonder what this might portend for the future for people who handle that in terms of them being able to put on their resume, how good they are at this. But in any event, those people are now supervising the execution of the document and there are prerequisites for them to do so. And there are prerequisites for actually using this process. And one of the things that you have to do in order to be able to prove up one of these documents is, the document itself has to be held by a custodian, a qualified custodian, at all times.

And there’s a bunch of things about what a qualified custodian has to be under the law. But one of the things it says that a qualified custodian has to have, is it has to have a “secure system,” which means, it has to have a system that can’t be monkeyed with. So, that whatever goes in, comes out the way it went in. And I submit that’s going to be a very interesting topic for litigation in the future as well. But of course, the secured system and the qualified custodian is the moneymaker. It is the thing that those people in the cool suits out in California came up with because it’s a great idea to make money. You have a secure system, you have a qualified custodian, you’ve got to pay them in order to lodge your document there. And that’s, as I said, where the money is.

So, what protects the citizens of Florida here? What is it that protects them? Well, I’ll tell you. If you take a look at that statute, the legislature of Florida certainly was looking after the citizens here by requiring that all of these qualified custodians have, and write this down, $250,000 bond that they post for damages, and that they have a $250,000 insurance policy. And if you don’t know it, I’m being sarcastic. I don’t know many estates that add up to $500,000.00. There just aren’t that many that these people in my area deal with. So, I’m not sure that the citizens of Florida, know exactly what they got.

So, in any event we have this new statute. And when you look at it, it has some interesting things about it. One of the things it does is requires the notary, as I said, to be the supervisor, and they have to ask specific questions of the person who’s signing this will remotely, and the questions are listed in the statute. They have to go through these questions now if the questions aren’t answered correctly, you would think, “Oh, that means you can’t have an electronic will.”  Not really. They’re going to answer the questions wrong. For example, one of the questions is, “Are you under the influence of any drugs or alcohol today?” or “Do you have any physical or mental condition or long-term disability?” or “Do you require assistance with your daily care?” If they say “no” to that, you would think, “Oh, you can’t do it.” Not necessarily, because the statute says, even when they answer those questions wrong, unlike in the Monty Python scenario, they don’t get thrown off the bridge. It just means that you gather that evidence to determine validity at another time. And then, the statute goes on to say that the notary has to give a notice to the person signing the electronic will that tells them that if they’re a vulnerable adult pursuant to some long definition in the Florida statute- I don’t think these people are going to there will executions with statutes- but they’re being given a notice that says, if you’re a vulnerable adult as defined in the statute, this is not a valid document. So, that, I’m not sure will be helpful or not. And then they have to ask them five more questions about who’s in the room, who helped them? How did they get there? All things that are fodder for a will contest. So, that brings us then to current times, which is – Bill, let’s start off by giving people a little bit of a taste of what it’s like to deal with this statute. After all, we now have this statute, what could possibly go wrong when you employ it?

Florida’s Electronic Wills Statute in Action

Well, let’s start with the video requirements. We all know that the witnesses to the will, will be probably in one location and the principal in another. So, therefore we need to have everything videoed.

So, what could go wrong there? All these guys in Silicon Valley said, “Hey, look, there it’s going to be, it’s all going to be on tape. We’ll stamp out fraud, we’ll stamp out lack of capacity. We’ll stamp out undue influence because you can just look at the video and see what happened.” Right?

Yeah. Well, it just raises a few questions, Tom, such was, was the video feed continuous? If not, why not? What was going on during the breaks? Does a videographer record that? Why not? What about the actual image of the person that signed the will? Was his pulse bulging the side of his neck. What about the responses? What about the pupillary dilation? Really, I can see that there being a necessity for having a director of a video execution of a last will and testament because it makes for good theater.

What about this list of questions though? Are they going to help us ferret out when there’s been undue influence or when there’s been some lack of capacity issue? What do you think?

Geez, I don’t know, but let me think about that. “Listen, sonny am I vulnerable adult, I don’t know, I don’t remember.”

Well, I can see your point. I mean, you have the first three questions and it’s interesting. When you go to those questions, they don’t seem to sound like, well the mature people that I think practitioners deal with, they’re assigning these documents because I think they all suffer, myself included, being of mature age, you might have a deficit or two that might cause you to answer that question let’s say in a way that was not favorable in the statute. But let’s move on. You sound like a pretty cynical guy to me. Bill, you’re coming up with all the negatives here to me, isn’t this just a great thing now you can wake up the morning, make yourself a cup of coffee, you and your spouse sit down to video and witness your friends’ will execution? Isn’t that a lot better than having to be squeezed into a small room, inhaling everybody’s molecules?

Listen, sounds like potential fodder for will contest, because of all of the things that could possibly go wrong in the 50 years I’ve been practicing law. I have never videoed an execution of a testamentary document. I would rather have the court rely upon my expert testimony that the person was good. And let’s just leave it at that Tom.

Well, with that, I think our time has run out or run over and we’ll have to end our presentation here, but let’s end it with the thought that there are many more questions to ask about the application of this statute and much more for us to see. So, thanks for listening.

And thank you, Tom and Bill. And thank you. This education on the new phenomenon of the electronic will and it’s definite pitfalls.

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