Wednesday, September 30, 2020
The Uniform Electronic Wills Act (Uniform Act), promulgated in 2019, allows created wills to be formalized on computers and other portable devices, leaving the wills to be completely electronic and never on paper. Also, testators are allowed to execute a will by signing it electronically and witnesses can be either physical or virtual.
This new era of signing and executing wills makes storage and filing much simpler since the wills can be stored as a file. As of now, no state has adopted the Uniform Act, but Arizona, Florida, Indiana, and Nevada have enacted non-uniform legislation authorizing electronic wills.
Although this new technology may certainly make things a bit easier, there are a few downfalls. For one, under the Uniform Act, all a testator and witness must do is sign type their names, making it akin to online transactions. This could raise contractual issues in the future, since e-signatures are and mutual agreement have often been food for the belly of litigation. Also, this will make it much harder for witnesses and testators to recognize the documents in the future. Fraud and forgery will pose a much greater risk in this form of formalizing wills.
People may also be more encouraged to perform DIY wills instead of reaching out for help.
Essentially, the main worry is that the many safeguards that are in place due to the requirement to execute wills in person will be removed in in the electronic era of wills.
Despite the potential downfalls, there are also many upsides to executing wills electronically, especially for those affected by COVID-19. They are easier and allow those that cannot leave home a means to execute important estate planning documents.
It will be interesting to see if and when states will adopt the Uniform Act.
See Adam J. Hirsch and Julia C. Kelety, Electronic-Will Legislation: The Uniform Act versus Australian and Canadian Alternatives, American Bar Association: Probate and Property, September/October 2020.