The Covid Effect
The COVID-19 pandemic has compelled many state executive and legislative bodies to take appropriate action pursuant to public health guidelines. One such development has been their enactment of remote and virtual options for will executions. Two significant examples are remote online notarization (RON) and electronic wills (e-wills). Colorado had begun to move in the direction of digitizing the probate process before global lockdown measures began in March 2020, but the pandemic was a key motivation to update the Probate Code. There have yet to be any cases in Colorado litigating the rules governing RON or e-wills. Nonetheless, estate attorneys and testators should be aware of possible issues arising from these new rules.
E-Wills in Colorado
Starting over a decade ago, many people began drafting and signing legal documents exclusively electronically, as opposed to in printed form—financial statements, professional correspondence, contracts, and the like. Nonetheless, most states currently only accept a Last Will and Testament in formal or holographic form. In 2002, Colorado enacted the Uniform Electronic Transactions Act to encourage “e-commerce and e-government” by allowing individuals to sign many documents electronically. The Act specifically excluded wills and other testamentary instruments. Around 2015, many technology companies began petitioning Colorado and other states to enact legislation concerning e-wills and the digitization of the execution process to keep up with the internet age.
In 2019, the Uniform Law Commission introduced the Uniform Electronic Wills Act (UEWA). Eight jurisdictions have since introduced legislation to enact the UEWA into their state probate codes. Utah, Washington, North Dakota, Colorado, and the US Virgin Islands have all enacted state e-wills statutes. Colorado enacted the Colorado Uniform Electronic Wills Act (CUEWA) in 2021. The CUEWA declares that courts may probate e-wills. It gives requirements for executing and revoking an electronic will; simultaneously executing, attesting, and self-proving an e-will; and certifying a paper copy of an e-will. The CUEWA also applies the Colorado Probate Code harmless error provision to e-wills.
Remote Online Notarization (RON) in Colorado
Shortly before the COVID-19 pandemic, Colorado introduced the bill SB 20-96 “Remote Notaries Protect Privacy,” amending the Revised Uniform Law on Notarial Acts (RULONA) to allow for RON. After the pandemic forced states to issue stay-at-home and social distancing directives, Colorado enacted several emergency orders and revisions to its probate requirements. On March 27, 2020, the Colorado Secretary of State issued an executive order temporarily suspending in-person notarization requirements but only for the remote execution of paper documents. On March 30, the Secretary further amended notarial regulations to allow for remote ink notarization (RIN) through real-time audio-visual communication. This rule required testators to mail their original wills within three days of execution.
The order permitting RIN expired as of January 2021. Current legislation indicates an interesting divergence in remote notarization options for paper and e-wills. Notarization requirements for paper wills have gone back to basics; testators must once again notarize paper wills in the notary’s physical presence. In contrast, the RULONA allows for both in-person notarization of electronic documents using a notary’s electronic seal or by RON using real-time audio-visual communications, as with RIN previously. The Governor made the option of RON for electronic documents permanent in June 2020.
Remote Online Witnessing
Due to the pandemic, the Governor of Colorado also enacted changes to the Colorado Rules of Probate Procedure (CRPP). Rules 91 and 92, adopted April 2020 and promulgated by the Colorado Supreme Court, allow for witnessing of certain formal (printed and signed) non-testamentary and testamentary instruments. Rule 92 allows either one or both witnesses to attest to wills via real-time audio-visual communication. Rule 92 has specific caveats: the witnesses must both be “qualified,” meaning either the licensed Colorado attorney for the testator or another attorney or legal professional. The will must include certifications for any of the witnesses attesting remotely. Separate documents containing certifications will be held invalid for probate.
Wills executed under Rule 92 cannot be self-proving and are ineligible for informal probate. Once testators sign their wills in accordance with the Rule, they must send the original copy to one of the attorneys who witnessed its execution within a “reasonable time.” The attorney will then present the will to the testator’s witnesses who must sign witness certifications. Rules 91 and 92 will remain in effect so long as the Governor continues to declare a state of public health crisis relating to the pandemic. It is effective as of August 2022, and Colorado lawyers have called on the Court’s Probate Rules Committee to extend it permanently.
The CUEWA allows for remote witnessing of electronic wills in lieu of notarization. E-wills can be signed either in the physical or “electronic presence” of the testator by two witnesses. “Electronic presence” implies that the witnesses can see and hear the testator execute their will in real time. Therefore, a phone call or recorded video will not suffice. Witnesses must be residents of and located in a state at the time of execution. Revocations of e-wills done by someone acting under the testator’s orders may still only be performed in their physical presence.
Benefits of Digitization and Harmless Error
Increased legal avenues for e-wills, RON, and remote witnessing moves Colorado probate requirements further in lockstep with our digital world. Especially in times where physical access has become more difficult and even impossible for certain individuals, remote notarizations and witnessing are equitable solutions to these problems. Remote witnessing also allows witnesses and testators the flexibility not to be in the same city or state. Unlike the UEWA, which makes no mention of a witness’s location, Colorado’s legislation indicates witnesses must merely be residents and located in a state. Nonetheless, this implies freedom to be in any US jurisdiction and maintain a will’s admissibility to probate. Remote attestation in the CUEWA reinforces the principle that there are much more significant aspects to a will’s admissibility in a court’s jurisdiction than the place of execution.
Electronic wills can be easier to store than paper wills. Hypothetically, testators can be more assured of never losing an e-will than they would be for a paper one. Those who are housebound or with physical limitations may also prefer the e-will route: they will never have to leave their homes to prepare, execute, and have a will witnessed. The harmless error doctrine is a helpful precondition to add to the CUEWA, because the advent of e-wills may mean many more people executing testamentary documents without legal assistance. Given the possibilities of technical glitches and formal defects, harmless error will guide Colorado courts in acclimating to this new era of estate law.
While the CUEWA currently requires an e-will to be a “record that is readable as text” in order to be valid, e-will legislation suggests the possibility of state legislatures passing laws allowing for audio or video wills. Until this is formally adopted, Colorado courts may see future cases testing this rule. An example of this would be video or audio wills that are then transcribed and signed, or testators who present video presentations accompanied by on-screen text that they then sign. Colorado courts’ focus will still center on whether these documents provide clear and convincing evidence of the testator’s intent.
Potential Issues
Digitization raises several areas for possible litigation. Firstly, under the RULONA, notaries can only perform RON using a state-approved online notarization platform. They cannot perform RON using Zoom, Skype, Facetime, or any similar platform. The RULONA also has strict requirements for execution and storage of e-wills that notaries must follow.
Courts may also see cases in which harmless error plays a role in witness locations. Would a Colorado court be satisfied that an e-will was properly electronically witnessed pursuant to Rule 92 if a witness is a resident of a US state, but is on vacation elsewhere at the time of execution? What about the reverse—if a witness is not domiciled in a US state but is in Colorado at the time of execution?
Courts may also see cases that test the limits of “electronic presence.” For instance, imagine a hypothetical case in which a remote witness is watching the testator execute an e-will, but the two have such a weak internet connection that the witness cannot properly see what the testator is doing. Could a petitioner successfully challenge this will for lack of due execution? What if a witness is able to see the testator properly, but the power goes out for a brief moment?
Revocation may be another issue for e-wills. With paper wills, revocations are often more obvious acts: a testator rips up, destroys, burns, or crosses out their will entirely. E-wills may be revoked either by subsequent instruments that explicitly revoke them, or by “physical acts” that show the testator’s intent on revoking them. It is not likely that testators will destroy their computers or tablets altogether if they intend on revoking their wills. But how can they indicate their fixed and final intent to revoke a will? Courts may be tested to strike a balance between accidental deletions and intentional revocations of purely virtual documents.
Conclusion
Colorado has made several important strides into the technology age with the RULONA and CUEWA. With the passage of any new legislation, only time will tell what benefits and issues these new policies provide. Estate attorneys and testators interested in executing e-wills or participating in RON and remote witnessing should be prudent in following exact guidance, as the lack of case law in this area means that any will contest will provide a new legal problem for Colorado courts to face.
