Just a few years ago, Arizona electronic wills were a “thing.” Our legislature adopted an Arizona electronic will law in 2018 (to be effective in mid-2020). At the time, only Nevada and Indiana had moved more quickly.
Then the entire country went into a pandemic-initiated shutdown. Getting your estate planning updated seemed more important than it had just a few months before. And it was harder to get to your lawyer’s office (or anywhere else). And people had a lot of time at home to think about these problems. Electronic wills became a big deal.
Here at Fleming & Curti, PLC, we talked about Arizona electronic wills. We wrote about them. A lot. And our message was consistent: Arizona’s law was an unfortunate mish-mash of ideas, and not ready for prime time.
So is it time yet?
The short answer: no. At least not in Arizona. Not yet.
Here’s the problem with being an early adopter: sometimes you adopt the wrong thing. The Arizona electronic will statute was so ground-breaking that professionals worried — a lot — about how it might get abused.
Do people forge paper wills? Yes, though very, very rarely. A search in the Arizona courts, for example, turns up a single instance of an appellate case deciding the issue of how to deal with a forged will. That case is from 1938, and involved a document forged by a woman claiming to have been married to the decedent. Unfortunately for her, he was still married to his first wife at the time of his death. And the experts testified that the handwriting (and the signature) on the will were not Mr. Sanders’.
Might people with evil intentions forge electronic wills? Yes, but who knew how often? Arizona decided to make it hard to get the electronic will done right. And the real issue is usually not forgery. A will contest is far more likely to be about undue influence or lack of capacity. And the type of document will have little bearing on determination of those legal issues.
Still, Arizona’s approach was to require several extra steps to secure an effective electronic will. Those steps make it almost always easier to create a traditional will than an (Arizona) electronic will.
But didn’t the pandemic make electronic wills acceptable?
Well, yes and no. A bunch (that’s a technical legal numeric calculation) of states have adopted an electronic will law since Arizona’s 2018 law. Florida acted right on Arizona’s heels, but didn’t make it any easier for people to sign electronic wills.
Then, beginning in the throes of the pandemic, a number of states adopted much simpler electronic will statutes. In order, those included Utah, Washington, North Dakota, Colorado, the US Virgin Islands, Minnesota, Idaho, the District of Columbia, Oklahoma, Missouri and Kentucky. The process in any of those states is simpler than it would be under Arizona’s not-very-good electronic will law.
If an Arizona resident really, really wanted to sign an electronic will, they could perhaps travel to one of those states to do so. But it’s probably both easier and less expensive to just hire an Arizona attorney to get it done right at an office within a short driving distance of your home.
I thought electronic signatures were accepted everywhere!
They are. For all sorts of transactions. But not for wills (and, incidentally, not for trusts or powers of attorney, either — but for different reasons).
There’s no doubt about it: the Arizona electronic will law is firmly stuck in the 20th century. That’s an improvement over the 16th century, but still puzzling and frustrating.
Want to buy a sandwich, or a car, or a house? Electronic signatures will be fine, and maybe you can do all of those things without getting up from your couch. But signing your will and related estate planning documents — for now — will require more traditional techniques.
Will that change? Yes, and probably soon. For some values of “soon.” Stay tuned!
