In January of this year, I canvassed developments on electronic wills in Australia, New Zealand, England & Wales, the U.S. and Canada. Since that time, the Uniform Law Commission (ULC)’s drafting committee in the U.S. has been moving the file forward. I am not aware of any law reform action Down Under, and the Law Commission of England & Wales is still thinking about it. Canada is discussed later in this column.
In late July, the ULC will give first reading to an Electronic Wills Act. The “Annual Meeting Draft” is quite compact yet covers the subject comprehensively. That said, it does not purport to change the common law of wills or to restate it, with one exception. See articles 3 (the common law and principles of equity continue except as modified by this legislation) and 4 (an e-will may be made by any adult who is mentally competent and free from duress or undue influence.) It works to add an electronic version to the existing law. An explanatory memorandum is also available to outline the policy issues faced by the Drafting Committee and its responses to them.
The draft Uniform Act deals with execution of the will by electronic means, including by the usual two witnesses. Their electronic signing is done by any technology; as on paper, the testator and the witnesses all sign the same document. The proposed statute does not say how this is to be done. In fact, the Drafting Committee expressly wanted to avoid any obligation to use specific technology. It was concerned that various private e-will services springing up would create lack of uniformity – and lack of clear standards – across the country, which would be harmful in a mobile society.
That said, the e-will must be in writing, even though in electronic form. A video or audio recording is not enough. This rule requires the draft Uniform Act to define electronic writing separately from the established ULC definition of “record,” which the ULC has been using for a quarter-century to permit electronic documents. For the purposes of other ULC statutes, a record (which includes what common-law Canada would call an electronic document) satisfies a writing requirement. The proposed e-wills statute narrows that possibility.
However, the draft Uniform Act relies in a couple of places on electronic notarization. The Uniform Probate Code allows witnesses to be replaced by a notarial declaration, and some states have adopted that rule. If so, the proposed statute would allow for e-notarization. Under other uniform legislation, this involves a digital signature that would prevent alteration of the signed document, and also a video of the signing process. So a video can be used for authentication but cannot be used for content.
The Drafting Committee spent some time devising a system for having witnesses act remotely, i.e. not in the presence of the testator. They created a concept of “electronic presence” that would allow a witness to see and hear the testator, and vice versa. Actually applying an electronic signature remotely is not a challenge. One can imagine circumstances in which this would be very useful, though its possibility has not yet been raised in Canadian discussions.
The comments to the draft Uniform Act speak of the functions of witnesses – evidentiary, to confirm capacity of the testator and lack of duress; cautionary, to signal to the testator that the action to be taken is serious; and protective, to deter fraud, coercion, duress and undue influence. It was thought that these functions could be performed remotely with the appropriate “electronic presence”.
The comments point out that witnesses to wills are often employees of law firms who probably do not remember much about a particular testator years after the signing, when questions of the circumstances of execution may arise.
Further, many states have a “harmless error” rule that allows a court to dispense with formalities, including the signature of a witness, if the testator’s intention is clearly demonstrated. The draft Uniform Act contains such a rule, in article 6. (My earlier article mentioned the “dispensing power” that might permit e-wills in Canada; the doctrine is essentially the same.)
The Drafting Committee concluded that the current witness system did not give an airtight guarantee that the stated functions would always be well performed, so it was safe to allow for remote witnessing with appropriate protections.
The draft Uniform Act also provides for “self-proof” of electronic wills. This essentially involves having the testator and the witnesses make affidavits at the time of execution that can be used to avoid a court hearing after the death of the testator. A simple procedure is used for this when the witnesses are present – again involving e-notarization. Similar procedures are used for paper wills, in the U.S. and in Canada, with conventional affidavits.
If there are remote witnesses, a more complex set of self-proof provisions call for the intervention of an “authorized person” to supervise the process of creating this documentary evidence. Interested readers may look at the text themselves, notably section 8 of the draft Uniform Act and the comment to that section.
Under the proposed legislation, an e-will would be valid if it is properly made in a state with the enabling legislation or if the testator resided or was domiciled in such a state either when the will was made or on death.
The draft Uniform Act also deals with revocation. While one can revoke a paper will by destroying it, there is a risk that an electronic will may exist in several identical copies. The Drafting Committee did not want to require that only a single authentic copy may exist. If there are multiples, then some might survive while others were destroyed. The proposed legislation calls for a “revocatory act” – not defined but described as possibly involving deleting a file, destroying a storage medium or giving an appropriate instruction to a storage web site. In all cases the intention must be proved by clear and convincing evidence. However, making a subsequent will also remains a means of revocation.
The proposed legislation would apply to any will whose testator died after the legislation came into force, so it would validate existing e-wills that met its standards.
The Uniform Law Conference of Canada (ULCC) has apparently decided to hold off work on electronic wills until the U.S. picture is clearer.
It may be that the most controversial element of the U.S. legislation will turn out to be the lack of technical standards for the electronic will document itself. How does one add different people’s e-signatures to the same document, so they all know the signatures are going onto the same document, that cannot be altered afterwards? There are commercial products that will do this. Must they be used? Is a generic requirement of integrity sufficient in law, and does the current law of wills make that clear enough?
The consultation material of the Law Commission of England & Wales contemplated requirements on document authentication that might involve technical standards. Technology specificity is always a challenge in law reform, so it will be interesting to see if this notion continues in the Commission’s recommendations.
The U.S. has a couple of legal resources that Canada has not yet developed. The greater common use of notaries is one – in wills as in other situations. The procedures of e-notarization are a further advantage that U.S. lawmakers can rely on. Electronic notarization has not generally been contemplated in common-law Canada, though Quebec’s Chamber of Notaries has had its Notarius system for some twenty years. It does much of what a notary does, notably with respect to authentication and document integrity, though it is not in operation a notary, unless an actual notary is involved.
As noted earlier, the ability to have witnesses act remotely from the testator at the time of signing has not been high on Canadian reform agendas. If that option were thought useful, the proposed U.S. statute might serve the purpose.
A move to electronic wills is inevitable, but it is not imminent. Canadian lawmakers – starting, probably, with the ULCC, since there is a strong reasons for harmonization of the law in this area – will benefit from considering the progress of the ULC’s work.