Most will signings are formal, solemn events with the client in counsel’s office, identifying the written document as the client’s will and responding to counsel’s queries before signing the document in the presence of witnesses and a notary. While the traditional formalistic will signing might have emphasized the importance of the act, those formalities, according to Professors Horton and Weisbord, may actually serve to inhibit many testators from being able to sign a will. Traditional will signing formalities date back to the English Statute of Frauds, which Parliament passed in 1677. It’s time to consider the dramatic advances modern technology can bring to the process.
The authors discuss the hardships to the families and loved ones of someone who doesn’t sign a will, or doesn’t do so effectively, because of the difficulties of adhering to the formalities many state laws still require. Courts have too often invalidated wills for minor defects in form, even if the particular matter wasn’t contested and even in some instances acknowledging that the document reflects the testator’s intent.
The growth of non-traditional family units makes this more important than ever. This is in part due to the fact that if a will isn’t signed, the intestacy laws in the testator’s jurisdiction would provide for distributions generally to spouse and descendants. Intestacy laws often won’t provide a dispositive scheme acceptable to a modern family. The article emphasizes that COVID-19 has made the formalities of the traditional will signing particularly problematic for many needing to sign wills. COVID-19 makes will signing inaccessible. The requirement for simultaneous presence under some state laws is particularly nettlesome in a COVID-19 environment. But, the authors’ arguments are cogent and make clear that the issues with traditional will signing formalities are concerning even if COVID-19 resolves. Those living with disabilities, health concerns and other special issues, which make traditional will signing difficult, could avoid such a challenge with a more modern electronic approach to will signing.
The law has recognized exceptions to the traditional and formal will signing. For example, about half of the states permit holograph wills, handwritten by the testator. The evidence cited by the authors suggests that holographic wills don’t trigger more litigation than traditional wills. Another exception is when courts have excused harmless error. This permits a court to treat as a will, a writing that doesn’t comply with statutory requirements. This writing requires clear and convincing evidence that the testator intended it to be a will. Electronic wills are another exception to traditional wills that four states have recognized, with more states considering such statutes. There’s some movement to permit remote witnessing. The authors also note the emergency legislation many states have enacted to provide leniency to formal will execution requirements during COVID-19.
Unfortunately, most of these developments still are largely rooted in traditional will signing concepts. Some of the emergency legislation requires that a signed will be scanned and emailed or sent via facsimile to the testator. Finally, the authors don’t mention, but we should consider, the tremendous and growing volume of commercial transactions that are conducted solely through electronic means. The time has certainly arrived for the laws governing will signing to be modernized to make it easier for those with special challenges to sign wills and make will signing more accessible. Hopefully, COVID-19 will serve as a catalyst to accelerate these developments.