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Very slowly but surely, estate planning law is catching up to modern technology.
The latest development paves the way for electronic wills in most states. An electronic will, or e-will, is one that recognizes the traditional formalities of a will when they’re in an electronic format. An e- will can be written in an electronic medium, electronically signed and electronically validated.
E-wills won’t do away with the need for a formal writing, signature and attestation by witnesses. An e-will has those features in an electronic format instead of on paper.
In recent years, a few state courts recognized electronic wills under particular circumstances. But there hasn’t been any broad recognition of e-wills or a law defining when they will be recognized, until the last few months.
The Uniform Law Commission (ULC) approved the Uniform Electronic Wills Act, also known as the E-Wills Act. The ULC is a group of law professors and practitioners who draft prototype state laws. Often, most states adopt a law within a few years after the ULC approves it. The Uniform Electronic Transactions Act, approved by the ULC in 1999, provides conditions under which electronic commercial contracts would be legally binding, but that law specifically excludes wills.
Florida is well ahead of the ULC. The Florida legislature passed an e-wills law in 2017, but the governor vetoed it for not having enough safeguards against fraud. A new version was enacted in September and will go into effect in Florida in 2020.
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An e-will still must be in text. Audio and video recordings won’t suffice under either Florida’s law or the E-Wills Act. In addition, witnesses still are required. The uniform law gives states the option either to allow the witnesses to be remotely located from the testator or require them to be physically present with the testator at the signing. Florida’s law allows the witnesses to be remote if detailed conditions are met.
Also, an e-will won’t be recognized or considered valid when the testator is someone defined as vulnerable (such as nursing home residents), because the potential for fraud or undue influence is considered to be too great.
Once prepared, an e-will can be revoked or changed, either electronically or the old-fashioned way. The uniform law says deleting a file or smashing a hard drive can be considered revocation of a will, depending on the circumstances.
But it could be a while yet before estate planners adopt e-wills, even after states adopt their versions of the E-Wills Act.
Florida’s law, for example, requires that an e-will be stored by a qualified custodian. Simply saving it to your smart phone, tablet or computer isn’t sufficient.
It takes a significant investment in technology and infrastructure to become a qualified custodian. Most law firms probably are unable or unwilling to make the investment. Most estate planning lawyers in Florida won’t be able to offer e-wills until firms that already provide technology to attorneys establish themselves as qualified custodians.
The E-Wills Act doesn’t have the qualified custodian requirement. It will be interesting to see how many states add similar requirements as they adopt the E-Wills Act.