If a court validates an amendment to a will written in blood, maybe it’s time for lawyers to encourage electronic wills. “I hate it! There’s a reason for execution formalities. There’s so much potential for abuse,” said estate lawyer Amy Kanyuk of Concord, New Hampshire, presenting at a session on recent developments in trusts and estates at the Heckerling Institute of Estate Planning’s annual conference.
So what counts as a valid will today? It depends on your state’s laws and how your state’s courts interpret those laws. In one case decided last year in New Jersey, In the Matter of the Will of E. Warren Bradway, Bradway wrote a will in 2001 that was printed out on paper, signed, witnessed and notarized (in ink)—that’s the norm. Then, in 2006, he handwrote a codicil in his blood naming a new executor and beneficiary (you can read the codicil here, thanks to law professor Gerry Beyer). The original executor and beneficiary protested, claiming that the codicil was invalid, but the court found that although the use of his blood was “eccentric,” there was clear and convincing evidence that Bradway wrote it, and it was valid.
So an electronic will isn’t written in blood, but it’s causing more of a stir among the trusts and estates community, which is tied to archaic rules. The issue of whether E-wills, as they’re dubbed, are valid is just beginning to be tested in courts. One court said a computer-generated signature was the “symbol” intended by the testator to authenticate the printed-out will, so it was valid. Another court validated a will handwritten with a stylus on a tablet (witnesses also signed). In Michigan this year, in re Estate of Horton, the court admitted as a will a digital note on Horton’s phone, which included a suicide farewell and a paragraph regarding the disposition of his property.
These cases are outliers, but the Uniform Law Commission, which advises states on laws, recognizes the trend in online everything and has an electronic wills committee, working on a draft law that states could adopt to make this all clearer and help families avoid litigation.
Who is pushing for E-wills? Companies that sell boilerplate online wills. The danger of shopping for a will online, instead of sitting down in an estate planner’s office, is that it won’t match your specific needs that a lawyer could assess by sitting down and asking simply, “What is the main reason you’re here?” noted Sarah Moore Johnson, speaking at Heckerling about planning for parents of minors. Maybe it’s to name a guardian for your kids. Maybe it’s to plan for the disposition of art or collectibles. The problem with the current system is that you have to go back to the estate planner’s office to sign the will, and sometimes clients just don’t get around to that.
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Nevada is the only state with an electronic will statute so far. E-will legislation is pending in the District of Columbia, and was considered but not enacted in Arizona, Florida, Indiana, New Hampshire and Virginia. In Florida, an E-will bill passed the legislature, but the governor vetoed it, citing security concerns and a provision that would allow nonresidents of Florida to bring their wills to Florida to probate.