Perhaps you have needed an excuse not to get your estate planning completed. “I’ll wait,” you might have said to yourself, “until I can sign a will digitally.” Well, we have good news: the nation’s broadest electronic will law was just adopted — in Utah.
We live in a time of anxiety about human contact. Would it be easier to sign documents if you could do it without having to interact with other people? Yes, of course it would. But wills, trusts and powers of attorney have required “wet” signatures and multiple witnesses since — well, since Henry VIII. He was the king in 1540, when the Statute of Wills was adopted.
It’s surprising how little changed in the ensuing five centuries. In most Anglo-American jurisdictions (including Arizona), wills still require two witnesses and a “wet” signature. It’s true that we have had wills signed on digital tablets, and even tractor fenders — but the basic rules have been the same.
Electronic wills in Arizona (and Nevada, Indiana and Florida)
There has been a move in legal circles to make it easier to sign wills, powers of attorney and even trusts by some electronic means. The theory is straightforward: if you can choose a house, visit it virtually and even purchase it all from your computer (or tablet, or phone), why not be able to complete your estate plan the same way? Besides, you already use the internet to manage all of your finances — and even to change the beneficiary designations on your accounts — so why not sign a will, too?
Four states (before Utah) have adopted laws expressly authorizing electronic (sometimes called digital) wills. Arizona is one of them — but all four of those earlier statutes are flawed, including Arizona’s. A digital will in Arizona is a completely different kind of document from a traditional will. It only exists in the ether. But it follows the old rules for witnessing — two witnesses must be physically present to sign (digitally) the document with you. And even with remote notarization (a developing idea in Arizona and elsewhere), the notary will usually have to be present if you want the will to be “self-proving”. That’s how you keep from requiring the witnesses to participate in later court proceedings, so most wills are self-proving. Arizona’s digital will law just didn’t improve on Henry VIII’s plan very much.
Indiana’s law looks very much like Arizona’s. Nevada’s is a little more flexible, as is Florida’s — but all four states require someone to take custody of the electronic file after you “sign”, and keep it in a secure location. No leaving your digital will in the top left desk drawer at your house, as you would with your paper-and-ink will.
What has happened in Utah to change things?
At the end of August, Utah’s state legislature adopted a version of the Uniform Electronic Wills Act. The Governor signed it, and it became effective immediately (usually new laws languish for a few months before they take effect). That means that Utahns can sign wills electronically right now.
Utah’s legislature wisely waited until the Uniform Law Commission prepared its model electronic wills proposal. The uniform law was not weighted down with ideas about “qualified custodians” of digital or electronic wills. That additional level of bureaucracy and cost, included in the law of all four states that acted before the Uniform Law Commission, makes electronic wills unattractive in most circumstances.
Is that why Utah’s is the nation’s broadest electronic will law?
Skipping the qualified custodian requirement is a big part of Utah’s step into the twenty-first century. But it’s not the only thing the Beehive State got right:
- Utah’s new law allows the two witnesses — and the notary for a self-proved will — to be “present” electronically. This is critically important to the viability of an electronic will law. There will no doubt be bumps along the road to establishment of reasonable expectations about witnesses and notaries, but the Utah law allows those to be smoothed over by developing practices. This, by the way, was an optional provision in the Uniform Act — the committee preparing that proposal thought it might be a step too far for some states.
- The new law also recognizes that a digital signature might be converted into a paper document. That is done by printing it and certifying that it is a correct copy. It even seems to acknowledge that a will might be partly paper and partly electronic. That is, some signatures might be physical and some electronic.
- Utah law will recognize the validity of any electronic will executed in another state; it also seems to recognize that a Utah electronic will might be signed by someone while they are in another state. Could the signer, both witnesses and the notary all be outside Utah at the time of their respective signatures? Nothing seems to prevent it.
- Perhaps most importantly, Utah already had recognized the concept of “harmless error” for will signing. That doctrine is only available in about a dozen states. It holds that failure to get the details precisely right will not invalidate a will. The proponent just has to show (by “clear and convincing evidence”) that the signer intended it to be his or her will.
Is this the future of estate planning?
For all these reasons, we think the new Utah law is the nation’s broadest electronic will law. Coupled with Utah’s harmless error doctrine, it makes it pretty easy to comply with the Utah law. Wills can be signed electronically, even with remote witnesses. But hold on — there are still a handful of issues to consider:
- It is not completely clear that other states will recognize electronic wills signed under Utah’s laws. That might be a problem in states that have no electronic or digital will law. It might even be a problem in Arizona, Nevada, Indiana and Florida. Utah electronic wills may not comply with those states’ laws.
- The Utah law does not address powers of attorney or trusts. That may be easy to work around, but it would be nice to expand the authority of the Utah law.
- Until a handful of other states adopt the Uniform Electronic Wills Act (or a variant of it), the idea might not fully enter the mainstream of legal thought.
- There really are dangers inherent in electronic signatures. The possibilities for fraud, abuse and exploitation seem obvious, for example. But it will take some years to identify the real risks and develop responses.
In the meantime, Henry VIII can rest easily. He might not have lived long enough to see electronic wills (he missed the mark by nearly five centuries), but his own will was mostly effective — even though it did not meet the Statute of Wills requirements as we now understand them.
In the meantime, we’ll all get to figure out how to apply the nation’s broadest electronic will law. Until a few other states adopt similar laws, that is.