Clients, particularly those on the younger side, often balk at the document execution requirements imposed when it comes time to sign their wills. They have become comfortable signing real estate documents via online signature. Business transactions worth millions of dollars are often signed electronically. On an almost daily basis, people click boxes and type in initials to enter into online agreements. Yet, the execution of wills have largely avoided a move into the electronic realm. With a few states now moving in that direction, this article examines why the execution of a will comes along with some special considerations not present in other types of documents and the means in which a recently passed Florida law seeks to address those considerations.
Pennsylvania adopted a version of the Uniform Electronic Transactions Act (UETA) almost 20 years ago, see 73 P.S. Section 2260.101 et seq. Broadly, the UETA allows parties to utilize electronic signatures and form electronic contracts so long as all parties to a transaction agree to do so. The term “electronic signature” is defined as “an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Such electronic signatures may take the form of an electronic representation of a person’s written signature—essentially inserting a representation of a physical signature into a document. It may take the form of clicking on an area of an electronic document in a software program that automatically inserts your signature. It may take the form of requiring your thumbprint or other biometric data such as a retinal or iris scan.
The Pennsylvania UETA states that, “if a law requires a signature, an electronic signature satisfies the law.” However, there are certain narrow exceptions to the acceptability of electronic signatures in the UETA. Among these exceptions are signatures required on wills, codicils and testamentary trusts. There have been several states that proposed allowing some form of electronic signature for wills, but few states currently allow them. Nevada passed such a law years ago, while Florida’s new law will go into effect on Jan. 1, 2020.
Formalities Surrounding Execution of a Will
Perhaps the most obvious reason for concern regarding electronic execution of a will is that the testator will not be alive when the will is probated. The advance knowledge that the testator will not be present to confirm execution of the will impels most attorneys to create a formulistic process for a will signing that is repeated each and every time. In Pennsylvania, no witnesses are required if testators are able to make out their full signature when signing their will. In the event testators sign by mark or have someone else sign on their behalf, different rules apply. Since two witnesses who are familiar with the testator’s signature would be required at time of probate, however, the common practice is to have two witnesses observe the testator’s and each other’s signatures and sign as witnesses at the time of execution. Further, it is common to have both the testator and witnesses execute an affidavit in front of a notary. This creates a “self-proved” will and avoids the need for the witnesses to later attend the probate of the testator’s Will or submit affidavits to the Register of Wills regarding the testator’s execution of the will.
In addition to making sure that the testator is the person actually signing the will, the will-signing ceremony serves other purposes. It allows the attorney to once again review how the testator’s estate will be administered at death and provides an atmosphere of formality to convey that the testator is executing an important document. It also allows the attorney and witnesses the ability to evaluate the testator’s capacity and demeanor at the time of execution.
Florida’s New Statute
In 2017, the Florida legislature passed a bill that would have permitted electronic signatures on wills. It was vetoed by Gov. Rick Scott in 2017 because he believed that the law did not adequately provide safeguards against fraud and that some procedural issues needed to be more closely examined. The legislature went back to the drawing board and received input from the real property, probate and trust law section of the Florida Bar Association. Earlier this year, the Florida legislature passed a revised bill that was signed into law by Gov. Ron DeSantis this summer. The law will take effect on Jan. 1, 2020, with the Department of State responsible for establishing rules to ensure that a will in electronic form cannot be tampered with or altered.
Under the law, an individual can electronically execute a will in one location, it can be witnessed by individuals in another location and notarized by a notary public in a third location. The key is that everyone must be present with each other through live audio-visual links that will need to meet certain requirements and allow the participants to see and hear each other. The notary can electronically notarize the record or can supervise the printing out of an electronic record and affix a physical seal to the copy. In printing a copy and affixing a signature, the notary would be affirming that no alterations had been made to the electronic record.
The law also provides a means for the notary to authenticate the identities of the participants by means of remote presentation of a government issued identification card, biometric devices or knowledge-based authentication. Knowledge-based authentication might include asking questions that only that person would know, similar to the way in which a bank might question an account-holder who calls into the bank. While the notary must be physically in the state of Florida at the time of the execution of the documents, the testator and witnesses need not be in the state. Importantly, the notary must retain an electronic journal, including a recording and backup of the execution of the document and the identification procedure. The notary is also required to ask certain questions of the testator regarding their age, whether they are signing voluntarily, whether they are of sound mind, whether anyone influenced them to sign the document and whether anyone assisted them in accessing the audio-visual conference.
In order for the will to be “self-proved,” an additional requirement is imposed. It must be stored with a qualified custodian. There are numerous provisions regarding the storage of the self-proved will with the custodian, revocation of the will, electronic filing of the will with the probate court at the time of the testator’s death and other provisions designed to safeguard the integrity of the process.
An interesting provision, which was requested by the probate and trust law section, is that so-called “vulnerable adults” may not use the electronic signing process. Under Florida law, vulnerable adults include those “whose ability to perform the normal activities of daily living or to provide for his own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage or the infirmities of aging.” In the event that a person later contests an electronically signed will based on an allegation that the testator was a vulnerable adult at the time of execution, the contesting party will have the burden of proving this status.
Role of the Attorney
With only a few states considering the types of laws that Florida just passed, it is unclear whether such procedures will eventually be widely adopted. Looking at Florida as a model, however, there a number of concerns that attorneys will need to consider:
- How does one classify a client as “vulnerable” so that he should not take advantage of the electronic signature option?
- Does the designation of a client as potentially vulnerable open up a challenge based on incapacity even when the attorney uses the ordinary, in-person execution process?
- What are the risks associated with allowing a “qualified custodian” to store the electronic will?
- Should an attorney meet with a testator in person before allowing them to sign a will remotely?
- Is the risk of adopting a new process such as electronically signed wills worth it when physical signatures have a tried-and-true record over the course of hundreds of years?
- Will you need to more carefully vet a notary since the notary has a more significant role in electronically notarizing a will versus the normal paper process?
- Should attorneys be required to offer the option of an in-office traditional execution procedure?
- Will the adoption of the electronic signatures for wills result in an increase in probate litigation?
With the number of older adults in Florida and “snowbird” Florida residents who spend significant time there, travel and also spend time in their former home state, it will be a good test case to see whether attorneys widely adopt these procedures and whether the new procedures encourage more people to consider execution of a will.
Reprinted with permission from the July 2, 2019 issue of The Legal Intelligencer. © 2019
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