Electronic Wills

WOW – who would have ever thought that an electronic Will would become acceptable to probate (file of record with the court as being the decedent’s intentions).  Yes, we do so much electronically, but a Will, which back in the day couldn’t have an erasure on it (and I am talking way back in the day before memory typewriters and in the days of carbon paper – if you even know what that is).  Perhaps I am dating myself, but I typed many a Will only to get to the last line of the paper (and it was legal size paper) to make a typo and have to start that page all over again.  OK, so back to current times. 

The Courts are being faced with validating electronic Wills – most of which don’t contain statutory language.  From what I have read, some of the electronic Wills have been admitted, but others have not.  Here are a few stories I have seen about electronic Wills.

A Will was dictated by the testator to a sibling who typed the same on a tablet device.  The testator signed the Will using a stylus and there were two witnesses who signed.  While the Will was not notarized, it was admitted as it was in writing and signed. 

There was a case in Australia where a testator prior to committing suicide created documents on his phone and labeled one to be a Will.  After consideration, the Court found that the Will was admitted to probate. 

Then there are video Wills.  These have been around longer than tablet devices and mobile phones and have been successful in the Courts admitting them to be valid Wills in certain circumstances.  People unable to sign their names but able to speak their intentions have had successful video Wills probated.  The testators must clearly state that the video is intended to be their Will. However, nowadays getting a video Will probated can be more challenging than an electronically written Will. 

The Uniform Electronic Transactions Act which was approved in 1999 allows for the transaction of business electronically.  Almost all states have adopted the UETA, but there is an exception for Wills and testamentary trusts that requires each state to enact legislation to allow for electronically signed Wills to be admitted.  This has led to the Uniform Electronic Wills Act which was approved in July 2019.  This Act continues the traditional formalities of a Will – a writing, a signature and attestation, with some adaptations.  The primary requirement is that a Will be “a record readable as text at the time of signing”.  Further, the electronic Will must be signed in the physical presence of witnesses (per individual state requirement). 

If an individual executes an electronic Will, but later wishes to revoke the same by a subsequent document, this may present challenges.  Since there is no hard copy of the original, this may lead to court involvement to determine the testator’s intent. 

For many years, Wills have been self-proving – meaning that the signature of the testator (in many states, but not all)  and the witnesses are notarized, which eliminates the need for the witnesses to come forward when the will is probated to “prove” their signatures.  There is currently a division among states as to whether the self-proving affidavit can be signed by the witnesses simultaneously and incorporated into the electronic document.  There is also discussion as to the validity of the electronic Will when the testator is physically located in one state at the time of execution but changes residency, prior to death, to another state.  This definitely conflicts with the expression of Wills set forth on paper and signed in ink that “valid where made, valid everywhere”. 

This is a topic that will likely become more commonly discussed as we journey toward being a “paperless” society. 

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Kay Sowa

About the Author

Kay Sowa is a paralegal in the Trusts and Estates Group at Capehart & Scatchard, P.A. She is an IRS Enrolled Agent, an Accredited Estate Planner®, and a Certified Trust and Financial Advisor. She oversees the trust and estate administration practice for the firm. She is an accomplished author and lecturer who has frequently spoken on behalf of a number of organizations including the National Business Institute and the Institute of Paralegal Education.

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