Estate Planning and Technology: Electronic Signatures

As digital technology continues to take hold, including a growing number of end-of-life planning websites and mobile apps, lawyers and lawmakers alike are calling for a closer look at how we may be able to effectively utilize electronic signatures in the area of wills, trusts and probate.

Passage of the Uniform Electronic Transactions Act (UETA, 1999) and The Electronic Signatures in Global and National Commerce Act (E-Sign, 2000) marked the arrived of a new technological era in the United States. The acceptance of electronic documentation (including electronic signatures) profoundly changed business, banking, and consumer practices and behavior. For one thing, the age of retaining paper copies of checks, contracts and other records came to an end.

Many industries, including real estate, finance, government, and banking adapted quickly. However, since UETA and E-SIGN specifically excluded wills and testamentary trusts from its provisions, estate planning continues to lag behind.

Limited acceptance of electronic signatures

Since 2001, Nevada has accepted electronic wills (including the acceptance of digitized signatures, fingerprints, voice and facial recognition, retinal scans, and other authentication that verify a “unique characteristic of the person”). However, other states have not been quick to follow. There have been a few unsuccessful attempts, such as a 2017 Florida bill that would have allowed wills to be signed, witnessed and notarized via videoconference (e.g., by people who are not physically in the same room as the testator), but that was vetoed.

Electronic signatures on wills have been accepted in some courts, where statutory requirements have otherwise been met:

  • In 2003, a Tennessee probate court accepted a will with a stylized cursive computer-generated signature, which was witnessed then printed out and physically signed by two witnesses. The Taylor v. Holt court held that the decedent’s signature satisfied the state’s requirement that wills be signed by “any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record” and which was made in the presence of two attesting witnesses.
  • In 2013, an Ohio court admitted the Last Will and Testament of Javier Castro to probate, a Will which had been signed and witnessed with a stylus on a Samsung Galaxy tablet. Castro’s Will was made in the hospital at his deathbed, and somehow his beneficiaries successfully argued that pen and paper was not available at the time. The judge ruled that the Will complied with Ohio law, which requires only that they be in written form, signed and witnessed.
  • In 2018, the Michigan court acknowledged the suicide note and digital instructions prepared on the “Evernote” mobile app in In re Estate of Duane Francis Horton. Although the court in that case recognized that Horton’s instructions did not meet the statutory requirements for a will, it concluded that a state statute would permit it as long as there was sufficient evidence that the decedent intended for the document to constitute his will. The court ruled that the evidence was sufficient under that particular set of circumstances.

Many see the rulings in the aforementioned cases as a call for legislatures to establish clear rules for wills prepared on electronic devices.

Why the demand for E-wills? Why the delays?

The demand for the digital Last Will and Testament certainly isn’t coming from estate planning attorneys, who know all too well the dangers of do-it-yourself wills and unsupervised signings. A significant portion of every estate planning practice involves fixing drafting mistakes and estate litigation that could have been avoided if certain precautions had been made during the estate planning process.

Electronic documents appear to do little more than compound the usual estate planning mishaps. For example:

  • Individuals who prepare the digital documents may not be licensed in the state nor qualified to prepare legal documents in that jurisdiction.
  • Digital forms may be subject to modifications and hacking (although proposals are being made to set up “crypto-wills” over secure blockchain).
  • When signings take place via video conferencing, there is no one to ensure that the testator isn’t being unduly influenced by someone off-camera, in the next room, or shortly before the appointment.

The presence of an experienced attorney can mitigate outside pressures and reduce the likelihood of someone signing a document that is not truly their “will.”

Tax and estate planning professionals in San Francisco

Efforts are underway to find ways to adapt the estate planning process to the digital age while still maintaining the necessary safeguards. In the meantime, estate planning in the absence of a qualified attorney remains a very risky endeavor.

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