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Electronic Wills Even Further Updated

The Uniform Law Commission in the United States has now published the revised text and commentaries to the Uniform Electronic Wills Act adopted at its annual meeting in July 2019.

Here is the official description of the Uniform Act:

The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form.

Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN, have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states.

Under the new Electronic Wills Act, the testator’s electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state.

For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion. [reformatted]

Some of the commentary will be interesting on matters such as remote execution and witnessing – as will the drafting documents, which are available on the ULC’s website.

The Uniform Law Conference of Canada (ULCC) decided in 2016 to wait for the results in the US before proceeding formally here. See my Slaw.ca columns on the topic in 2018, such as this one, which has links to the others. The Uniform Electronic Commerce Act has a similar exclusion to that in the UETA in the US regarding wills and codicils to wills.

The ULCC had an interest as well in seeing what the Law Commission of England and Wales would conclude. According to the Law Commission’s web page, it has suspended completion of its wills project to consider the law of weddings…

In that connection, I was interested to read a submission to that Commission by two English experts, widely published on matters of authentication. They submitted, in essence, that electronic wills are a solution looking for a problem. There was no serious demand for e-wills and no serious burden in sticking to paper, compared to commercial transactions generally.

However, estates lawyer Barry Corbin has pointed out that a key motivation for the American uniform initiative was the recognition that, like it or not, there are, and will continue to be, growing numbers of millennials (and, eventually, Gen-Xers) who are technologically savvy and who purport to make an electronic will using a smart phone or other device without realizing that, with rare jurisdictional exceptions, there is no legislation in place that will allow those “documents” to be given legal effect.

In short, the purpose of validating electronic wills (with the appropriate safeguards) is not so much to let people who want to make such wills do so, but to save the validity of e-wills that people have gone ahead and made on their own without regard to the law on the ‘right’ medium. It may be curative, perhaps, rather than directory.

Those e-wills may in fact state the intention of the would-be testator and have been perfectly effective if their medium had been paper. Why allow the law to kill them for non-compliance with centuries-old form requirements, just because it would not have been harder for the testators to do it right on paper?

One could ask whether the cost of ‘validating’ unreliable wills by electronic wills legislation exceeds the benefit of validating lots of perfectly good wills that happen to have a heretofore invalid form. My guess is that the benefits would outweigh the bad cases, but that is hard to prove.

So: should the Canadian Conference proceed with its project? Should it adopt the US solutions where appropriate, and if so, where is that, or where would their solutions not be appropriate here? Are we comfortable with remote witnessing, i.e. with the witnesses virtually rather than physically present? Once one accepts electronic execution, must one still insist that everybody is sitting in the same room with their own devices, or at the same device one at a time? Are real-time videos the answer? Do they become part of the probate record? Etc. etc.

Now what?

Comments

  1. (Comment received by email from Eva van Loon, posted with permission)

    Suddenly I have nightmares about proving–or disproving–testamentary capacity.

    Ideally, wills are prepared by lawyers–not just any old lawyer but one skilled, experienced and engaged in estate planning. So much may depend on the lawyer’s taking good notes both at the time of giving instructions and time of execution. Some three decades ago, video wills were considered by some in the profession but their potential for clouding issues of testamentary capacity and testator’s intentions quickly became apparent.

    The existence of electronic wills won’t encourage the populace to write wills. Moreover, it’s difficult to image a situation so dire that the only possible solution is executing the will electronically. Even if a will is unwitnessed, jurisdictions usually have provisions to apply for administration with will annexed. Conceivably, the thing annexed might consist merely of emails. But please let’s not let this fascination with our own inventions invade the province of execution, which seems to work perfectly well as is. As is well said, this is a solution looking for a problem…which it certainly will find in abundance.

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