Once upon a time, the legal field relied on face-to-face interactions, loads of paper files, and gallons and gallons of ink. This is not so in the current day and age. Our legal documents were once handwritten, then typed and printed, and are now becoming a series of ones and zeros. Most attorneys now harbor a hybrid mix of paper and electronically stored data. For elder law attorneys, shifting their historically physical procedures into electronic practices is a foreign concept – a concept now coming to fruition in the form of electronic wills.
What are Uniform Acts?
Our nation is made up of sovereign states – meaning that each state governs itself separately from its neighbors. Although Federal law looms over the union generally, each state has leeway to vary its specific laws to reflect the needs and values of its population. The separation between states and the federal government also allow for discrepancies – and sometimes competing positions – on hot topics like medical marijuana or gun rights.
Because of individual state independence, states are not required to match one another’s laws, rules, and expectations. This often creates an inconsistent result regarding behavior in one state versus another. For example, some states permit physician assisted suicide or ban the unsolicited distribution of single-use straws, and others do not. Each state has its own version of laws relating to overarching issues – state laws on proper will execution, driving ages and restrictions, probate processes, elements of crimes, etc.
To combat these disparities, and to promote greater uniformity of laws amongst the states, the National Conference of Commissioners on Uniform State Laws (a.k.a. the Uniform Law Commission [ULC]) was established. The ULC is comprised of a vast collection of legal professionals that propose model rules for state adoption. While not laws, in and of themselves, these proposed rules provide a foundation for uniformity for adopting states to build from. Since 1892, “the ULC has promulgated more than 300 uniform and model acts.”
The Uniform Electronic Wills Act
Recently, the ULC approved the Uniform Electronic Wills Act. The Act builds a bridge between traditional will execution and technological advancements affecting the field. Historically, wills have been a document signed with pen on paper. In the day in which “e” everything exists, e-wills have started to emerge.
What is it?
This model Act outlines the process for effectively creating and executing a will via use of technology and online processes. It builds upon the notions of the Federal Electronic Signatures in Global and National Commerce Act (ESIGN) and the state’s Uniform Electronic Transaction Act (UETA); adopted by all but New York, Illinois, and Washington.
What is its purpose?
If uniformly adopted by the states, this potential law would permit a testator to create, sign, notarize, and execute a valid will without ever having to be in the physical presence of another person. Traditionally, and generally, creating a will was a formal event requiring a number of witnesses, a notary, and the testator, to be in one location together at the time of execution – with the exception of holographic wills, for the states that permit them. This model law allows a testator to create an electronic representation of their wishes, have it witnessed and notarized online, simply by way of audio-visual communications.
How Does it Work?
Under the model law, testators will be able to create an electronic document reflecting their post-death desires. The testator would then gather their witnesses, access an online notary, and participate in a real-time audio-visual meeting as a group, to execute their last will and testament. Successfully performing this process would result in a valid will. The model law retains traditional, in-person, procedures as well. A hybrid approach to the process appears permissible as well.
How is this different from other electronic documents?
E-signatures are widely accepted across the country. However, e-notarizations are not – yet. E-notarization acceptance is on the rise across the country. Requirements for the legitimacy of various documents differ; and the requirements for will execution are especially particular. The validity of a will depends upon the state in which it is created. A will requires notarization for the self-proving affidavit portion, if included or permitted in your state. Notarization is usually not necessarily required to create a valid will, but is highly recommended.
Signing a typical legal document, electronically or pen to paper, is a perfectly acceptable means of affirming the contents of the document. Signing before a notary provides an added element of seriousness and legality – an element required for many legal documents. Notarization in the physical presence of a notary has always been the norm. However, the enhancement of the internet’s capabilities has created access to notaries without the need for physical proximity.
This concept is foreign to many states and the attorneys licensed in them. Uniting the formalities of will execution with the intangibility of e-documents is not a comfortable maneuver for many practitioners.
Elder law is a highly individualized area of practice. Having online access to will execution is a concern for many attorneys. Clients are likely to find boilerplate internet wills that lack the specificity that the client actually needs. From a practicing perspective, attorneys are concerned that their clients will not have their wishes fully outlined using these one-size-fits-all documents. Even with editing to their individual needs, clients face the possibility of neglecting to use important legal terminology or creating ambiguities that could be avoided by employing an experienced elder law attorney.
Fraud and Duress
There is added concern that testators will be more susceptible to fraud and duress in the execution of their e-will. While the e-process requires real-time audio-visual communication, who is to say that an ominous presence is not influencing the individual from behind the camera?
Storage and Protections
The model law does not specify what form the final document must be in. Would a word document suffice, or is a PDF version necessary to combat potential tampering? No encryption requirements are noted in the model law either. Nor is there any guidance for who is to retain the “original” copy in the finalized form.
Revocation of an existing physical will requires an overt act – such as stating so in a subsequent will or by intentionally destroying it. How then, without a subsequent will, would an e-will be destroyed by a preponderance of the evidence? Simply by clicking delete? How many of us have unintentionally deleted a file by mistake? The burden to show the intent to destroy an e-will poses additional challenges than that of a will in physical form.
The greatest benefit to offering electronic wills is simple: accessibility. The adoption by states of the model law will benefit those unable, or unwilling, to physically travel to a notary. Further, other accessibility hurdles – like documentation in braille or providing interpreters – will become obsolete, as those with accessibility needs generally have these resources implemented on their computers. Individuals in long-term care would no longer need to find transportation to an attorney or notary, nor need to request that they come to them. The convenience of e-wills creates an opportunity for testators to bring the formal process into their homes. This luxury increases the likelihood that more individuals can have their desires formally addressed through a will.
Fortunately, there are many companies offering these online notarization services. In addition to the final document, many of these services also keeps records of the video conference, identifying documents, audit trails tracking the date and time of the signing, and also provides encryption to evidence any tampering of the document. These additional pieces of evidence could be quite useful in proving the authentication and validity of contested documents – additional evidence not available for the pen to paper method. Most of these businesses provide the multi-person video conferencing necessary for a fully remote execution.
Will states adopt it?
Many states have already legislated approval for the use of online notarization. Others are on the cusp of permitting it. Several states have already enacted laws that permit the use of e-wills, specifically. See our previous ElderCounsel blog on the specific states that allow these electronic versions.
The internet is an amazing thing. We can order groceries to be delivered to our door. We can watch how-to videos to learn to remodel a house. Packages can be ordered and delivered the very same day. We can access case law, court documents, and legal forms at the click of a button. It is only logical that our legal system will become more and more electronic friendly as technology advances and access to resources grow.
The world relies on the ability to transmit information electronically – we have become irreversibly dependent upon it. While legal constructs have been built upon the expectation and practice of face-to-face interaction, practitioners must prepare themselves for the inevitable – e-everything.