By, Kate Dopkin, Elder & Disability Law Clinic Student, Spring 2022
It is increasingly common that many documents, including binding legal contracts, are created and signed in an electronic form.[1] However, under the laws of most states, a person’s last will and testament is still only valid if it is in tangible paper form.[2] For example, in Virginia, a will must be in writing and signed by the testator, either handwritten or typed and printed, with two witnesses who also sign the will.[3] Given the rise of digital documents in other areas of law, and the COVID-19 pandemic, there has been an increased demand for digital estate planning documents.[4]
The Uniform Electronic Transactions Act was approved by the Unfirm Law Commission in 1999 and has been adopted by almost all states.[5] The act allows parties to validly sign bilateral commercial contracts electronically; wills, a type of unilateral agreement, were excluded from its scope.[6] In 2019, the Uniform Law Commission passed the Uniform Electronic Wills Act, which would permit testators to execute an electronic will and allow probate courts to give electronic wills legal effect.[7] The Act serves as model legislation for states to adopt if they so choose.[8] The Commission has promoted its act as a way to modernize the law, encourage more people to create estate plans, and solve interstate recognition problems.[9] The Act still requires that electronic wills be in writing (i.e. not in audio or video form), signed, attested, and witnessed either in person or virtually.[10]
Recognizing electronic wills allows people to create and execute a will without leaving their own home.[11] The testator could create a will online and have the document notarized after a short video call with an online notary.[12] The will could then be stored electronically without the need for a hard copy to change hands.[13] The electronic will would be easy to store, could never be lost, and could be easily shared with others.[14] The opportunity to create a valid will in this fashion would be particularly convenient and attractive to people who are housebound.[15]
However, to date, only four states (Colorado, North Dakota, Utah, and Washington) have enacted the Uniform Electronic Wills Act.[16] While electronic wills seem to offer a convenient method of estate planning, many see potential problems (and potential litigation) surrounding electronic wills.[17] Some probate attorneys have voiced concern about an increase in disputes over the testator’s lack of capacity and undue influence or coercion in electronic will signings where an attorney would not be present.[18] Other potential disadvantages include the uncertainty surrounding legal recognition of electronic wills and cybersecurity issues.[19]
Even without statutory provisions specifically dealing with them, many courts across the country have been asked to validate electronic wills.[20] For example, an Ohio court validated a will written and signed on a Samsung Galaxy Tablet, holding that the will met Ohio’s statutory requirement that wills be “in writing.”[21] The will was admitted to probate because it had two witnesses as required by law.[22] Although Ohio does not have a law specifically authorizing electronic wills, the court instead expanded traditional estate planning law to cover the tablet medium.[23]
Presently, Virginia does not have any statute authorizing electronic wills.[24] Several e-will bills have been introduced in the state, including the Uniform Electronic Wills Act.[25] However, it remains to be seen whether Virginia will adopt such legislation.[26] It is clear that electronic wills are becoming increasingly common across the country, and the laws surrounding electronic wills are evolving quickly.[27] Many practitioners believe that, despite the controversy surrounding them, it is only a matter of time before electronic wills become commonplace.[28]
[1] See Uniform Law Commission, Electronic Wills Act Summary, Uniform Law Commission,https://www.uniformlaws.org/committees/community-home?communitykey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71.
[2] See id.
[3] Va. Code Ann. § 64.2-403.
[4] Shannon Laymon-Pecoraro, Electronic Notarization Insufficient for Execution of Wills, Hook Law Center, https://hooklawcenter.com/2020/05/01/electronic-notarization-insufficient-for-execution-of-wills/#:~:text=Virginia%20does%20not%20have%20an,it%2Dyourself%20estate%20planning%20documents.
[5] See Uniform Law Commission, Electronic Transactions Act Summary, Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=2c04b76c-2b7d-4399-977e-d5876ba7e034.
[6] See id.
[7] See Uniform Law Commission, Electronic Wills Act Summary, Uniform Law Commission,https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71.
[8] See id.
[9] See Uniform Law Commission, Why Your State Should Adopt the Uniform Electronic Wills Act, Uniform Law Commission, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=c8fbed08-63c2-c070-d699-d057d14d653e&forceDialog=0.
[10] Id.
[11] Petroni Law Group, Advantages and Disadvantages of Electronic Wills, Petroni Law Group, https://petronilaw.com/advantages-and-disadvantages-of-electronic-wills/.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Uniform Law Commission, supra note 1.
[17] Christine Fletcher, The Pros and Cons of Electronic Wills, Forbes (October 25, 2019), https://www.forbes.com/sites/christinefletcher/2019/10/25/the-pros-and-cons-of-electronic-wills/?sh=6f3fe4454572.
[18] Id.
[19] David Reidel, Behold the 21st Century Will: The E-Will!, JD Supra (Oct. 19, 2021), https://www.jdsupra.com/legalnews/behold-the-21st-century-will-the-e-will-6004522/.
[20] See ABA, Technology—Probate: Ready or Not, Here They Come: Electronic Wills Are Coming to a Probate Court Near You, American Bar Association Probate & Property Magazine, https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2019/september-october/ready-or-not-here-they-come-electronic-wills-are-coming-a-probate-court-near-you/.
[21] Id.
[22] Id.
[23] Id.
[24] Mark v. Pascucci, A Brave New (Electronic) Will, Wolcott Rivers Gate (September 24, 2020), https://www.wolcottriversgates.com/blog/a-brave-new-electronic-will/.
[25] Id.
[26] Id.
[27] Id.
[28] See ABA, supra note 20.