Ready or Not, Electronic Wills Have Arrived

By Sasha A. Klein

Ward Damon

Mention electronic wills to a lawyer and you’ll get one of two reactions – “Great!  It’s about time estate lawyers joined the 21^st century!” or “Uh oh, on-line wills are ripe for mistakes, fraud and abuse.”  Regardless of which camp you may be in, get ready, because the Florida Legislature has passed an Electronic Will law, effective in 2020.   

History of Will Execution & 3 Key Legal Requirements

For centuries, a ceremony had to be followed for Wills to be effectively signed. These formalities trace back to a pair of statutes enacted by Parliament centuries before the invention of the light bulb. They include an in-person review of the document, an expression of lack of coercion and demonstration of capacity to understand the import of the document’s terms, followed by a pen to paper signing by the testator, two witnesses (and usually a notary), all in the same room.

There are three key requirements for creating a Will: (1) it has to be written or typed, (2) signed with a physical pen (inked), and (3) witnessed by 2 people who do not benefit under the Will, in the physical presence of the testator.  These Will formalities exist for good reasons.  They evidence the testator’s intent, caution the testator as to the significance of making a Will, and protect the testator from fraud and duress.

Creating an Electronic Will

To execute an electronic will, the new Florida law still requires the three basic formalities above; however, what is different is it allows all this execution process to happen in cyberspace, aka over the Internet.  There are 3 major changes to the law: 

1. Paper Writing. Instead of only a paper writing, the Act allows a Will to be in electronic record form, like most contracts these days.
2. Pen and Ink Signature. In addition to an actual signature with a pen, the Act allows an Electronic Will to be signed with an electronic signature. Today, this is commonplace for many contracts with widespread use of programs like DocuSign.
3. Witnesses. The Act still requires 2 witnesses who are independent from the testator, but it expands the physical presence requirement. Witness presence can be achieved remotely with simultaneous video and audio connection (think Skype or FaceTime).

Remote Presence 

During the bill’s movement through the Florida legislative committees, there were concerns about the Act’s authorization of witnessing via remote video webcam, in lieu of requiring physical presence.  Many argued that safeguards should be put in place to thwart off-camera wrongdoing, such as someone holding a gun behind the camera pointed at the testator.  These concerns were taken seriously and incorporated into the act relating to remote presence, such as: 

(1) A vulnerable adult may not use the remote presence portion.

(2) The entire video session of the electronic execution ceremony must be recorded and stored by a qualified custodian for future reference in case there is a dispute.   This goes beyond the requirements under current law that rely only on witness memory and other circumstantial evidence.

(3) The testator is required to present a valid picture ID that may be scanned in and verified using appropriate software, and may be subject to an antecedent in-person identity proofing process (i.e., “out of wallet” questions which are frequently asked during a credit check, such as which of the listed addresses has the individual not resided, etc.).

During the video session, the testator also must be asked a series of specific questions and provide appropriate verbal answers to all these questions while being videotaped, including:

(1) Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?

(2) Are you of sound mind?

(3) Are you signing this document voluntarily? 

Modernizing Will Execution

Traditional will formalities need to adapt to the evolving technological context where most transactions – including massive end of life transfers under pension plans, brokerage accounts, life insurance policies – can be made electronically. The Act authorizes using Electronic Wills that are made in compliance with a similar set of formalities that are more suited for today’s electronic age.

Conclusion

It is important to note that Electronic Will laws do not eliminate current law regarding will execution or notary standards.  Instead, they simply add another tool to help facilitate estate planning locally and globally, physical presence is not always convenient or possible.

Just as our society has moved from the requirement that physical checks must be presented at a bank window, it is likely that this technology will move into the mainstream of our society and that one day creating or amending an estate planning document via the Internet will become not just possible, but indeed commonplace.