November 2019 Newsletter – Are Electronic Wills Legal?

ARE ELECTRONIC WILLS LEGAL

The use of electronics in the digital age has become increasingly popular, especially in the younger generation. Most people rely on their email and cell phones on a daily basis and even use it to conduct business. Almost everything in today’s world is stored digitally and many business and real estate transactions worth millions of dollars are conducted and signed electronically. Is the execution of Electronic Wills moving in the same direction?

As times and the world change so does the law, which is changing the way people conduct business and legal transactions. In 1999, the Uniform Electronic Transactions Act (UETA) was enacted, which established the principle that electronic documents and signatures should be given the same legal effect as paper and ink. Pennsylvania codified the UETA in 73 P.S. §2260.101 but it contains a specific exception in §2260.104(b)(1) which states “… this act does not apply to a transaction to the extent it is governed by … (a) law governing the creation and execution of wills, codicils or testamentary trusts.”

Some states have already moved toward electronic wills. An electronic will is a document that is created, signed and notarized online. Nevada enacted a law in 2000 which allowed an individual to make an electronic will but had strict authentication requirements. Nevada re-wrote the statute in 2017 with three different methods of creating a valid electronic will. Additionally, Nevada, Arizona, California, Florida, Indiana, New Hampshire and Virginia have since adopted electronic wills legislation. Case law in states with no statute has also developed. In Ohio, a non-electronic will state, the court admitted to probate a will drafted and signed electronically on a tablet. The court held the tablet satisfied the legal requirement of a “writing” and the decedent’s electronic signature satisfied the legal requirement that the will be “signed.” In Tennessee, another non-electronic will state, an individual typed his will and typed his name in cursive on the signature line. The witnesses to the will signed by hand. The court held the individual’s will was signed and valid. The growing popularity of electronic wills has also moved to other countries, including Canada, South Africa and Australia.

Each state has its own set of requirements or formalities for a will to be valid. Pennsylvania law 20 Pa.C.S.A. §2502 requires a will to be in writing and signed at the end. The use of formalities is there to protect all individuals involved. The will signing ceremony serves many purposes with the foremost being to make sure that the testator is the person actually signing the will. It also allows the attorney to once again review how the testator’s estate will be administered at death and allows the attorney and witnesses the ability to evaluate the testator’s legal capacity and competence at the time of execution.

As more states more toward electronic wills there are certain points to consider before a will is signed, including: where will the will be stored; should the attorney meet with the testator before allowing him or her to sign remotely; is the testator “vulnerable” to abuse and/or undue influence who should not sign electronically; and, will the adoption of electronic signatures result in an increase in probate litigation.

The use of electronic wills in Pennsylvania will be entrusted to the Legislature. As more states adopt some type of state statute that allows the use of electronic signatures, the Pennsylvania Legislature might feel obliged to follow. However, there is no way to tell if or when Pennsylvania will adopt a new law. Therefore, to ensure the validity of your will, it is still important to consult an estate planning attorney for the drafting and signing of your will.