The Digital Era and COVID-19
The Covid-19 pandemic has changed the estate administration landscape in the United States, accelerating the digitization of the field and triggering a growing awareness in the population of the importance of estate planning. A 2022 survey estimates that only 32% of Americans have a will. However, the COVID-19 pandemic has precipitated a change in attitudes towards estate planning. According to the same survey, the number of Americans aged 18-34 with a will has increased by 50% since before the pandemic. Meanwhile, Americans who survived a serious bout of COVID-19 are now 66% more likely to have a will than those who have not. This effect extends to the loved ones of COVID-19 survivors, who are 41% more likely to have a will compared to those with no close connections to survivors of severe COVID-19. These findings suggest that, on the whole, the pandemic has led many Americans to seriously confront the importance of estate planning.
The other major shift in estate planning caused by the pandemic is the acceleration of digitization and the wider adaptation of the legal system to a remote context. Roughly half of American states only recognize a will adhering to the formal requirements laid out in the Wills Act of 1837. This statute, which has defined wills law for almost two centuries, demands that a will be written, signed in ink by the testator, and witnessed by two people present in the same room. Though originally a UK statute, its requirements have been adopted in common law jurisdictions around the world, including the U.S. Understandably, these stringent requirements create formidable obstacles for would-be testators in a time of social distancing and lockdowns.
As a result, some states responded by enacting temporary legislation to enable Americans ability to execute legal documents, including wills, remotely, such as through e-notarization and remote online attestation. For example, New York state executive orders 202.7 and 202.14 respectively allowed for the issuing of legal documents through e-notarization and for electronic attestation of wills. North Carolinians also embraced remote online notarization in their state, with the legislature enacting a temporary emergency video notarization law in 2020. Similar developments played out across the country, but the question remains: how many of these temporary measures will be permanently adopted? In North Carolina, House Bill 776, signed in July 2022, officially codified remote online notarization as of July 2023 and the emergency video notarization law of 2020, effective immediately. Overall, it’s likely that more and more states will move towards digitization of estate planning, exemplified by the new adopters of the Uniform Electronic Wills Act.
The Uniform Electronic Wills Act (UEWA)
The Uniform Electronic Wills Act (UEWA) is model legislation drafted by the Uniform Law Commission. It can be adopted by legislatures seeking to allow testators to execute electronic wills and for such wills to have legal effect for the purposes of probate. The act validates wills stored electronically, allows for remote witnessing, and includes a ‘harmless error’ provision allowing for validation of wills which don’t exactly meet execution requirements so long as they are readable as text and were clearly intended to act as a will. The Uniform Law Commission crafted the legislation in anticipation of the growing demand for digitization in estate planning. They contend that the adoption of the UEWA modernizes the law, encourages more people to make wills, solves interstate will recognition problems in providing a harmonized framework, and is easily adaptable, as the language of the act is ostensibly tech neutral and therefore need not be adapted for new technology. The UEWA can be modified to suit the needs of each state, while providing a foundation encouraging uniformity across jurisdictions. It was first passed in 2019, and has since been adopted and enacted in Colorado, North Dakota, Utah, the US Virgin Islands and Washington. As of 2022, the UEWA has been introduced in the legislatures of the District of Columbia, New Jersey, Georgia, and Massachusetts.
Weighing Pros and Cons
The growing adoption of the UEWA poses a significant shift in an estate planning landscape shaped by the Wills Act. Therefore, it is important for estate planners to be cognizant of the strengths and potential fallbacks of electronic wills as they become more common.
The chief advantage of electronic wills is their flexibility and accessibility. This has been perhaps the chief factor in their uptake during the pandemic. The pandemic context is an extreme one, in which it became simply impossible to execute a valid will according to the requirements set out in the Wills Act. Electronic wills can still meet all the main functions of the Wills Act, requiring writing, a signature, and attestation in the manner of a regular will. Writing and signature requirements, as with traditional wills, signify intent and genuineness on behalf of the testator, as well as the desire for finalization of the document. Electronic wills are far more accessible for the housebound and those seeking to limit contacts during pandemic surges, and remote witnessing requirements can prove to be logistically simpler to coordinate than arranging for two uninterested witnesses to be present at the time of signing. Electronic storage is also an attractive solution to the enduring issue of locating the will of a decedent: one survey estimates that 52% of people don’t know where their parents’ estate planning documents are stored.
However, there are also valid concerns about the use of electronic wills. The prospect of undue influence, coercion or fraud is a chief concern, as it is impossible to see with certainty who is present in the room with the testator at the time of signing. However, this is easily remedied by adoption of requirements to the effect that the attorney or notary present demand the testator show, with their camera, that they are alone in the room. Furthermore, so long as states recognizing electronic wills remain in the minority, there are a host of potential issues to be cognizant of. For example, an electronic will created by a decedent in one state may not be found valid in the probate court of another, in the case that the decedent moved out of the state in which the will was created. Overall, given the novelty of e-wills, a physical will likely remains the most prudent option, especially for those in states which have not yet adopted the UEWA. This holds even for those residing in states with e-will statutes, until e-wills have been more widely adopted throughout the country.
Jurisdictional Comparisons
As mentioned above, the UEWA has been adopted and enacted by Colorado, North Dakota, Utah, the US Virgin Islands and Washington. However, these are not the only states that recognize e-wills. Nevada, Florida, Arizona, and Indiana have all adopted their own e-will statutes outside of the UEWA framework. However, some jurists argue that there is no need for the adoption of e-will statutes if courts are simply prepared to interpret the Wills Act more broadly under the harmless error rule. This rule allows for courts to excuse non-compliance with the Wills Act over “harmless” defects in a will’s execution so long as the testator’s intent can still be proven.
In In re Estate of Castro, No. 2013ES00140, 2013 WL 12411558, an Ohio Court validated a will written on a Samsung tablet dictated by the decedent to his brother on his deathbed. In that case, the court found the will to be valid under the harmless error rule, finding clear and convincing evidence that the decedent intended the document to be his will and that it was signed by the decedent in the presence of two witnesses. The harmless error rule was also used to validate an electronic will by a Michigan appellate court in In Re Estate of Horton, No. 339737, 2018 WL 3443383. The harmless error rule was added to the Uniform Probate Code in § 2-503. The rule has to date only been adopted in some form by eleven states, including California, Colorado, and New Jersey. Uptake of the rule has also been linked to the pandemic, as in the case of Minnesota, which enacted the provision in April 2020 in response to social distancing requirements.
Electronic wills have also been validated in states which have neither adopted electronic wills statutes or the harmless error rule. In Taylor v. Holt No. E2003-00901-COA-R3-CV., a Tennessee appellate court determined on its own whether a will drafted and signed electronically met the formal requirements of a will. On the issue of whether the computer-generated signature constituted a legal signature, the court held that it did, as it fell into the category of a symbol, thereby validating the will. However, it is important to note that while these states have used the harmless error rule and other means to validate electronic wills, such cases remain exceptions to the rule.
Takeaways
Moving forward, COVID-19 remains ever present, despite the return to relative normalcy across the country. The future is impossible to predict, but as we have all learnt, it pays to be prepared for rapid, unexpected changes during an ongoing pandemic. In light of this fact it is likely that legislatures will continue to adopt electronic will legislation, if only to be prepared in case circumstances change again and physical execution of wills becomes impossible. Whether that takes the form of adopting the UEWA, homegrown electronic will statutes, or even in a more expansive reading of traditional wills law, it is inevitable that electronic wills are a fixture of the estate law landscape that is here to stay. However, until e-wills are formally recognized by a plurality of states, a traditional will is likely still the safest option to ensure one’s testamentary plan is fulfilled.
