As technology progresses, so do all aspects of our lives, even in the fairly traditional world of trust and estate law. One of these changes has been a shift toward the reliance upon electronic documents, and specifically electronic signatures, in law and business. An electronic will, also commonly called an “eWill,” is a will that has been written, signed and stored using an electronic medium, such as a digital format. This is different from a will that has been generated using an online service provider and then executed as a paper document.
The use of an electronic document as a will is not an entirely new concept. Over the years, there has been case law both abroad and in the United States that has permitted probate of electronic documents (text messages, documents on computer discs and the like) that do not fit the traditional definition of a will. A common theme among the cases was the application of the “harmless error doctrine” by the court. Under the harmless error doctrine, a will may be accepted for probate even if it does not comply with statutory law relating to execution when there is clear and convincing evidence that the testator in question intended the document to serve as her will.
Following on the heels of the harmless error doctrine cases, states began enacting statutory law related to eWills. In 2001, Nevada was the earliest state to enact eWill statutes (subsequently amended in 2017). On July 1, 2018, Indiana’s eWill statutes went into effect. In June 2019, Arizona’s eWill statutes went into effect. Most recently, in July 2019, Florida enacted eWill statutes that went into effect on Jan. 1, 2020. Following this trend, the Uniform Law Commissioners approved and recommended for enactment the Uniform Electronic Wills Act (UEWA) in July 2019.
Brief Overview of Similarities and Differences Among the States
The Execution of the eWill
All of the states that currently have eWill statutes require that the eWill be “signed” by the testator as part of the execution, specifically that the testator affirmatively apply her electronic signature to the document. What is required in addition to the “signing” varies somewhat from state to state. For example, in Arizona and Indiana, the execution of an eWill requires that the document also be “signed” by two attesting witnesses who must be in the physical presence of the testator during the execution. In contrast, Florida’s law permits the witnessing of the testator’s signature by two witnesses who are not in the testator’s physical presence so long as there is audio-video communication between the witnesses and the testator and the execution is overseen by a notary public.
In Nevada, the eWill can be considered properly executed if, in addition to the testator’s electronic signature, it contains:
- An “authentication characteristic” of the testator (specifically, a characteristic that is unique to the testator and is capable of measure and recognition in electronic records — for example, a fingerprint or a retinal scan); or
- Signatures of two attesting witnesses (who do not need to be in the physical presence of the testator so long as there is audio-video communication during the signing); or
- The electronic signature and the electronic seal of the notary public.
The UEWA requires that an eWill be signed by the testator and provides options to the future enacting states for electronic signatures of two witnesses or an electronic notarization. As with any uniform act, the UEWA will likely be personalized by each state that enacts it.
Self-Proving
Corresponding to laws regarding traditional paper and ink wills, the states that have enacted eWill statutes have also included methods by which the eWill can be made self-proving. For example, Nevada and Arizona provide for an eWill to be self-proving if:
- Self-proving declarations or attestations of the attesting witnesses are incorporated as part of, attached to, or logically associated with the eWill; and
- The eWill designates a qualified custodian to maintain custody of the electronic record of the eWill; and
- Before being offered for probate or being reduced to a certified paper original that is offered for probate, the eWill was at all times under the custody of a qualified custodian.
Custodian — Who Can Qualify
Each of the eWill states requires that the eWill be maintained in the custody of a “custodian” (the UEWA is silent as to the custodian of eWills). Whether a person or entity qualifies as a custodian varies from state to state. In Indiana, the custodian may be any adult whom the testator authorizes in writing to act in such capacity, but may not be: (i) the testator who executed the eWill, (ii) an attorney, (iii) a person who is named in the eWill as a personal representative of the testator’s estate, or (iv) a person who is named or defined as a distributee in the eWill.
In Nevada, the custodian may not be an heir of the testator, a beneficiary of the estate, or a devisee under the eWill. Similarly, in Arizona, the custodian cannot be related to the testator by blood, marriage or adoption and cannot be a devisee under the eWill or be related by blood, marriage or adoption to a devisee under the eWill.
In Florida, the custodian must be domiciled in and a resident of Florida or, if an entity, the custodian must be incorporated, organized, or have its principal place of business in Florida. Surprisingly, Florida has not included any prohibitions on an interested party of the estate serving as a custodian.
Special Considerations and Ethical Issues with eWills
Protecting At-Risk Individuals
With any legal document, there is a concern that a vulnerable individual will be taken advantage of by unscrupulous persons. This concern is heightened in the case of an eWill where no one may be in the physical presence of the testator during the execution. It can be much harder to determine the testator’s mental state and understanding when each party to the signing is participating remotely through an audio-visual connection compared to an in-person signing conference.
To help address the concerns surrounding potential abuses, all of the current eWill statutes and the UEWA include an additional requirement of one or more of the following: (i) witnesses, (ii) an electronic notary and (iii) an authentication characteristic of the testator. Florida has taken the additional step of requiring “vulnerable adults” to have the witnesses physically present for any signing. This additional requirement may help the witnesses better assess the competency of the testator than they would be able to do via an audio-visual connection.
In addition to the execution requirements, the qualified custodian is required to store additional documentation as part of the electronic record. For example, in Nevada and Arizona this includes, in part, an audio-video recording of the testator, attesting witnesses and notary public, as applicable, taken at the time each party placed his or her electronic signature on the eWill. This additional required documentation will help provide evidence as to the validity of the execution of the eWill and the competency of the testator, if such is ever questioned in the future.
Storage of eWills in a Secure Manner
One of the first things that comes to mind with an eWill is the potential of the document being altered, intentionally or unintentionally, during storage or otherwise destroyed.
Nevada, Indiana, Arizona and Florida all specifically require the custodian of the eWill to maintain the electronic record in a protected manner. Arizona’s statute states that the custodian shall maintain the electronic record in such a way as to protect the electronic record from destruction, alteration or unauthorized access, and in a manner that detects any change to an electronic record. Florida additionally requires that custodians post and maintain a blanket surety bond of at least $250,000 to secure performance of duties, and that they maintain liability insurance to cover any losses sustained by people storing electronic records with them (such policy must cover at least $250,000 of losses in the aggregate).
Statutory requirements are all very well and good, but the systems used for the storage of the electronic documents must be regularly updated to keep pace with changes in technology and advances in cybercrime. As the use of eWills becomes more common and protective requirements more stringent, there will be a question of whether a custodian, who is not a large company in the business of providing custody for electronic records, will be able to provide adequate safeguards.
Revocation of an eWill
The simplest way to revoke an eWill is to execute a new eWill or traditional paper will that affirmatively revokes the prior eWill. There is the question, however, as to whether or not it is possible to revoke an eWill via a physical act given that electronic documents may never truly be “destroyed.”
When it comes to physical revocation of an eWill, there is less consensus among the states. Both Nevada’s and Arizona’s statutes provide that a testator can direct a custodian to destroy the eWill. Such direction is to be in writing and signed by the testator with the same formalities of a will execution. Florida simply provides that the revocation by the testator or another at the testator’s direction can be achieved by deleting, canceling, rendering unreadable, or obliterating the eWill or codicil with the intent, and for the purpose, of revocation as proved by clear and convincing evidence.
Indiana is the clearest with regard to these technological issues and provides detailed instructions for revoking both an eWill held by the testator and an eWill held by a third-party custodian.
Probating an eWill
Although electronic filing has become more and more commonplace, the Massachusetts probate court system still requires that the hard-copy original of the will be filed with the court as part of the probate opening process. Happily, Massachusetts attorneys seeking to probate an eWill will not necessarily have to figure out how to get the electronic formats to interface with the computer systems of the probate courts. All of the eWill states and the UEWA provide for the production of a certified hard copy of the electronic record that may then be submitted for filing. Such a certified hard copy of the electronic record is intended to stand in the place of a traditional hard-copy original will.
Enforceability of eWills in Massachusetts
Per M.G.L. c. 190B, Section 2-506, a written will is valid if it is executed in compliance with Section 2-502 [execution of wills statute] or if its execution complies with the law at the time of execution of the place where the will is executed, or with the law of the place where, at the time of execution or at the time of the death, the testator is domiciled, has a place of abode, or is a national. Massachusetts, therefore, will accept for probate a written will validly executed under the laws of another jurisdiction. It is arguable that an eWill validly executed in a jurisdiction with eWill statutory law should be accepted by the Massachusetts probate court for probate in Massachusetts pursuant to M.G.L. c. 190B, Section 2-506 and the principle of full faith and credit.
Until eWills become more commonplace, there will likely be some questions each time one is presented for probate outside of an eWill jurisdiction. For further clarity, counsel could seek an opinion from the court of the jurisdiction where the eWill was executed as to whether all execution requirements were met. This opinion could then be submitted with the certified hard copy to provide the probate court with additional evidence for the determination of the validity of the eWill.
Conclusion
Although eWills may seem like a radical new concept, as a society we have become increasingly reliant upon the use of electronic documentation for business and financial transactions. It is important as trust and estate practitioners that we continue to keep ourselves informed as to the use of eWills in other states. With the high mobility of modern society, it is only a matter of time before we will encounter eWills in our practice, regardless of whether or not Massachusetts chooses to enact an eWill statute in the future.
Karen L. Witherell is a partner with the law firm of Bove & Langa in Boston. Witherell specializes in estates and trusts law, including domestic and international work, philanthropy, business succession planning, special needs planning, prenuptial agreements and wealth preservation.