Recent events, such as the COVID-19 global pandemic, have forced the debate on electronic wills, notaries and signatures back to the forefront of legal conversation. Ironically, in the midst of this pandemic that’s paralyzed our nation, people all over the country have rushed to complete their estate plans. Some have avoided attorneys and turned to online electronic wills, unaware of the uncertainty and debate that currently surrounds their validity. For elderly clients with mobility issues or who are self-isolating for fear of contracting COVID-19, the ability to use electronic signatures on estate-planning documents is even more important.
Meanwhile, attorneys have been grappling with how best to accommodate and assist their elderly clientele to execute essential documents without jeopardizing their health, all while simultaneously balancing statutory requirements for a valid will, power of attorney, trust, health care proxy, etc. Electronic wills have been the topic of fervent debate for over a decade, with some arguing that it’s time to move into the digital age making estate planning more accessible, while others fear that allowing electronic documents and signatures will undermine the historic purposes behind formal will executions, resulting in fraud, the inability to easily authenticate documents and inconsistency in form.
In addition to considerations regarding electronic wills or other estate-planning documents, questions and concerns have arisen regarding remote signings. While an electronic document is one in which the writing and signature are all electronic or digital in nature, remote signings refer to formal executions in which the signer, witnesses and notary aren’t all in the same location. During COVID-19, questions have arisen about what “in the presence” means, and the ambiguity has led to numerous emergency orders from governors all around the United States that authorize such remote proceedings. However, the remote process was a major cause for concern when Florida’s governor vetoed Florida’s Electronic Wills Act in 2017. Ironically, Florida’s governor has issued an emergency order authorizing remote notarization.
We’ll focus primarily on electronic wills because, while not widely used in the estate-planning context, other legal documents may be subject to the Uniform Electronic Transactions Act (1999) (UETA), which authorizes electronic signatures on documents. However, the UETA specifically excludes wills and testamentary trusts, making their execution particularly problematic during these unusual times.
A Brief History of Wills
The Probate Code of every state, known for historical reasons as the “Wills Act,”1 includes a provision that proscribes rules for making a valid will. The Wills Act requires wills to comply with particular formalities. The purpose of these formalities is, and has always been, to enable a court to easily and reliably determine the authenticity of a supposed testamentary act.2 These formalities also ensure a standardized form for wills that simplifies judicial review of whether an instrument was intended to be a will,3 emphasizes the importance of making a will4 and protects the testator from manipulative imposition.5 Accordingly, given the anonymity of the Internet, the challenge in developing these same formalities for electronic wills (and other documents) has been in balancing formalities and the risk of probating an inauthentic will with the risk of denying an authentic will.
There are three core formalities for the making of a valid attested will: (1) writing; (2) signature; and (3) attestation.6 The Statute of Frauds, adopted in 1677, required that a written will be signed by the testator in the presence of three witnesses for a testamentary disposition of land.7 In 1837, England enacted a Wills Act requiring the same formalities for all wills regardless of the nature of the property disposed of under the will.8 The Wills Act reduced the number of necessary witnesses to two but required that they both be present when the will was signed or acknowledged.
Electronic Wills
One major part of the debate surrounding electronic wills focuses on the ability to comply with statutory formalities including style, content and execution. The failure to satisfy these requirements renders a will invalid and unenforceable, resulting in the often undesirable alternative of intestate provisions of the applicable state intestacy laws determining the distribution of an estate. This assumes that the applicable state doesn’t have a holographic will9 or harmless error10 provision that might save a will that otherwise doesn’t meet the statutory requirements.
The Uniform Electronic Wills Act (the Act) was finalized this past fall by the Uniform Law Commission (ULC). The Act addresses the formation, validity and recognition of electronic wills.11 According to a statement from the ULC, the 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.12
Although the Act is referred to as “uniform,” it doesn’t apply in any given state unless it’s adopted. As of now, no states have adopted the Act, and no version is currently pending in any state legislatures.
Electronic Writing
Wills are required to be in writing. The Restatement of Property defines this requirement as a reasonably permanent record of the marking constituting a will.13 However, what’s determined to be a “writing”? Traditional wills complying with the formalities of execution were first typed into a word processor and printed or typed onto paper using a typewriter, subsequently signed by the testator, witnessed by at least two witnesses and notarized. Holographic wills were instead written on paper in a testator’s own handwriting. Notably, since the widespread adaptation of word processing, wills that were found to be valid were first in electronic form. Courts grappled with whether typewritten wills were a “writing” within the meaning of the Wills Act.14 Ultimately, courts decided that typewritten wills were a reasonably permanent marking and could be admitted to probate. Most state statutes now define a “writing” as being a handwritten or typed document.
Yet, technology has advanced well beyond traditional word processing, and the public at large has embraced that advanced technology (which is small enough to fit in the average person’s pocket). The public has expanded its definition of “writing,” yet legislation hasn’t been widely modified to adapt to technology, and courts are being asked to validate electronic wills without the statutory language in place to deal with them. In what’s probably the best known case and the first American case to probate an electronic will, In Re Estate of Castro,15 Javier Castro dictated a will to his brother, who wrote the will on a tablet. Javier then signed the will on the tablet, using a stylus, and two witnesses signed on the tablet as well. The probate court held that the electronic writing on the tablet met the statutory requirement that the will be in “writing.” The court admitted the will to probate because it had two witnesses as required by Ohio law. The court, here, had little trouble expanding traditional wills law to cover a different medium.
But, what if, instead of printing a will on paper, it’s stored on a USB flash drive or hard drive, or it’s a PDF saved in cloud storage? Ongoing digitization of society is quickly replacing (and in many ways has already replaced) the use of paper with electronic forms as the new norm. Federal court pleadings are signed and submitted electronically, contracts for the sale of real estate are signed and submitted electronically, yet the ULC just released the Act in 2019, which has yet to be adopted by any state.
Electronic Signatures
Many property transfers are initiated and confirmed with electronic signatures. Instead of ink on paper, many transactions are completed by clicking a button and typing the signers’ names into a form or signing a tablet using a finger or a stylus, or even via audio or video recording, in which the signers denote that they agree to complete a transaction. Such electronic signatures aid efficiency in that as soon as the transaction is completed, there’s a digital record of what took place. Several states have adopted laws defining electronic signatures to include “an electronic sound, symbol, or process” affiliated with a document that’s made by an individual with intent to sign that document.16 But, many states, including Virginia, have specifically excluded wills, codicils or testamentary trusts from the statutes allowing electronic signatures.17
However, non-probate property transfers are effective with electronic signatures. Payable on death, transfer on death and other beneficiary designations are valid if they’re electronically signed. But, in most states, an electronically signed will is invalid because electronic signatures are statutorily invalid for testamentary documents.
Despite the lack of existing statutory authority on electronic signatures and wills, courts have been dealing with whether an electronically typed name or electronic mark on a document constitutes a signature as far back as the early 2000s. In 2003, the Court of Appeals of Tennessee determined that a testator created a valid will when he prepared it on his computer and affixed a computer-generated signature to the end of it.18 Two witnesses watched him make his electronic signature and signed a paper copy.19 The will was neither electronically witnessed nor digitally stored. The testator’s sister argued that the will wasn’t valid under Tennessee probate laws. The court of appeals upheld the will despite its electronic creation and electronic signature, because a mark intended to act as the testator’s signature was valid.20 The fact that the decedent used a computer rather than an ink pen as a tool to make his signature wasn’t so drastically different as to put the testator’s will out of compliance with Tennessee law.
However, at least one court has recently found that the definition of “signature” doesn’t include a printed name on the document. In Litevich v. Probate Court, a testator drafted a will using an online service provider.21 The testator created an account, drafted a will and electronically confirmed the documents she had prepared. The company mailed her a paper copy, but she failed to sign it. The court determined that even though she had electronically confirmed portions of the will, had created the account and had typed her name on the document, she hadn’t satisfied the signature requirement of the Wills Act under Connecticut law.22
Electronic Attestation
The third and final requirement under the Wills Act is that two witnesses must sign the will attesting that they either were in the presence of the testator when she signed it or that the testator acknowledged in their presence that the will and signature were hers. A majority of states require two witnesses to attest to a will for it to be valid. States have been strict about the attestation requirement and having witnesses who actually see the testator sign the document.
The requirement for physical presence has been the biggest barrier to the transition of wills into the digital age. The problem with electronic attestation is that most states require that attestation of a will occur in the “presence” of the testator. No case law or statutory language defines “physical presence.” Some courts have interpreted presence to mean that a testator must be in the line of sight of the witnesses when she signs her will, and other states have adopted the conscious presence test, finding that a witness is in the presence of the testator if through sight, hearing or even general consciousness of events she understands that the testator is in the act of signing and has capacity to do so. Neither test uses literal physical presence to determine whether the parties were actually “present.”
As with the concept of “writing,” technology has given us the ability to communicate beyond what’s contemplated by existing statutes. In In Re McGurrin, a testator sought to have an individual witness a will over the phone. The court found that the Wills Act required the witness to have an “observatory function,” which couldn’t be accomplished by a telephonic acknowledgment by the testator.23 A New York appellate court also held that a telephonic communication couldn’t satisfy the requirement of witnessing a will. In Whiteacre v. Crow, witnesses viewed the signing of a testator’s will on a video monitor.24 That court held that the conscious presence test wasn’t met partly because the video monitor only worked one way.25 The witnesses saw and heard the testator’s actions, but the testator couldn’t hear and see the witnesses. “Presence” was defined in the statute as being “within the range of any of the testator’s senses,” and the court found that excluded sights and sounds relayed through electronic means.26
At the forefront of the COVID-19 estate-planning crisis is attestation by electronic means. Cellphones have given us the ability to video chat since 2010, and video conferencing has been widespread in the corporate world for years. Yet, it was the inability of attorneys to meet with their clients in person that caused attorneys, state bar associations and professional organizations like the National Academy of Elder Law Attorneys and the American College of Trust and Estate Counsel to strongly advocate for electronic attestation. A number of states such as Georgia, Massachusetts, North Carolina and Texas have issued temporary orders and regulations that allow remote witnessing and notarization using technology. However, some states, such as Virginia, considered options but didn’t elect to adopt any given the ability to bypass will formalities by executing holographic wills or using revocable trusts. Interestingly, all such remote attestation authority is only temporary. So, while the technology that makes remote attestation possible is permanent and improving daily, the authority to use such is only temporary.
Electronic Notarization
Finally, with the possibility of more states adopting legislation allowing for electronic wills, how these documents will be notarized is an important consideration. Remote notaries and electronic notaries are two such considerations. These two types of notarization are, understandably, often confused with each other. However, they’re not the same and shouldn’t be confused.
With regards to remote notarization, a signer personally appears before the notary at the time of notarization using audio-visual technology over the Internet instead of being physically present in the same room.27 Documents are exchanged, and both the signer and the notary affix wet signatures and a seal. Electronic notarization, on the other hand, involves documents that are notarized in electronic form, and both the notary and document signer use an electronic signature as discussed above.28 The confusion arises from the fact that, while both require the use of technology, electronic notarizations involve digital documents that are signed and notarized electronically, and no wet signature is involved.
Currently, 24 states have passed remote notarization (RON) laws.29 Out of those states, 17 have laws that are in effect as of April 1, 2020.30 Currently 14 of those states have fully implemented their remote notarization procedures, meaning the law has taken effect, and notaries are currently authorized to perform remote online notarizations in those states. Also, due to the COVID-19 pandemic, several states that haven’t fully implemented RON or currently have pending legislation have issued special orders authorizing notaries to perform remote notarizations early due to the emergency.31
A Last Hold Out
The debate among practitioners regarding electronic wills, remote notaries and electronic signatures isn’t new. Practitioner proponents of advancements in technology in estate planning have been on the losing side of the debate for quite some time. However, the current pandemic has thrust electronic wills back into the public eye and has resulted in new conversations as to their importance, usefulness and validity, especially for elderly clients. While professionals continue the conversation, estate-planning documents have been produced during this pandemic. Some have been electronic wills, some were remotely attested and notarized and some may result in litigation.
While evolution and expansion is expected in this area of the law, the law of wills currently remains one of the last holdouts when it comes to embracing and accepting digitization. In our digital world, documents on our devices are just as real as documents that are printed out, electronic signatures are just as binding as ink signatures and video conferencing is just as instantaneous as physical presence. While legislative reform seems inevitable but slow-coming, COVID-19 may accelerate the timeline.
Endnotes
1. Wills Act, 1 Vict. c 26 (1837).
2. Robert H. Stroff and Jesse Dukeminier, Wills, Trusts, and Estates (10th ed. 2017), at p. 141.
3. Ibid., at p. 142.
4. Ibid., at p. 144.
5. Ibid.
6. Uniform Probate Code (UPC) Section 2-502 (amended 2019), 8 U.L.A. 506 (1990); Restatement (Third) of Property: Wills and Other Donative Transfers (Restatement Third) Section 3.1 (1999).
7. Statute of Frauds, 29 Car 2 c 3 (1677).
8. Supra note 1.
9. UPC Section 2-502 (amended 2019).
10. UPC Section 2-503 (amended 2019).
11. Uniform Electronic Wills Act (the Act).
12. Uniform Law Commission comment on the Act (November 2019).
13. Restatement Third Section 3.1 cmt. I (2003).
14. Stuck v. Howard, 104 So. 500, 502 (Ala. 1925), overruled in part by Reynolds v. Massey, 122 So. 29 (Ala. 1929).
15. In Re Estate of Castro, No. 2013ES00140 (Ohio Ct. Common Pleas, Prob. Div., Lorain County, June 19, 2013).
16. 15 U.S.C. Section 7006(5).
17. Ibid.
18. Taylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003).
19. Ibid.
20. Ibid.
21. Litevich v. Probate Court, 2013 WL 2945055, at *1 (Conn. Super. Ct. 2013).
22. Ibid.
23. In Re McGurrin, 743 P.2d 994, 995 (Idaho Ct. App. 1987).
24. Whiteacre v. Crow, 972 N.E.2d 659, 662 (Ohio Ct. App. 2012).
25. Ibid.
26. Ibid.
27. Michael Lewis, “Remote Notarization: What You Need to Know,” Notary Bulletin (June 27, 2018).
28. Ibid.
29. Remote Electronic Notarization, National Association of Secretaries of State (May 20, 2020).
30. Ibid.
31. Ibid.