Modernizing the Will Drafting Process: Does Electronic Will Legislation Really Protect Testators?
People now have access to their technological devices at all times.[i] Tasks that were traditionally done by hand are now being completed entirely using electronic devices, like tablets, laptops, and cell phone applications.[ii] For example, people now utilize Apple Pay and Android Pay, which allows users to store their debit and credit cards on their cell phones in a digital wallet.[iii]
However, people are not the only ones being affected by the incorporation of modernized technology, entire industries are integrating electronic devices into daily processes and procedures.[iv] Even the health care profession has been drastically modified by technological advances.[v] For example, can now better communicate with patients because doctors can use a cell phone application to translate a diagnosis into any language.[vi]
Therefore, the legal profession could not avoid incorporating some form of technology into traditional processes.[vii] For instance, Florida courts now require that attorneys and paralegals submit entire cases online through an electronic portal (“e-Portal”).[viii] Although courts incorporate modernized technology into traditional processes, the world of wills and trusts has yet to completely change existing formalities.[ix] For instance, most jurisdictions still follow the traditional will execution requirements, and require that a testator’s will be: (1) in writing, (2) signed by the testator, and (3) signed by two witnesses in front of the testator.[x] However, some jurisdictions have considered getting rid of the existing formalities by permitting wills drafted electronically into probate.
For instance, the State of Nevada became the first, and only, state to pass electronic will legislation.[xi] The Nevada legislature enacted electronic wills legislation, which allows for wills created in a digital format, in order to make will drafting both more efficient and convenient.[xii] Therefore, electronic will legislation allows someone to save both time and money because they do not have to hire an estate-planning attorney to create their last will and testament.[xiii] Although electronic will legislation appears beneficial, this type of legislation poses many problems for testators.
To begin with, electronic will legislation gets rid of the traditional formalities that courts are accustomed to because this legislation allows someone to create and store his or her last testament entirely on an electronic format.[xiv] Furthermore, practitioners fear that allowing testators to create a will digitally will open the floodgates for older testators to be exploited by friends and loved ones.[xv] Essentially, electronic will legislation creates problems that could have been prevented if the existing formalities were abided by.
Therefore, Florida Governor, Rick Scott, also noticed significant problems with electronic wills legislation and vetoed the Electronic Wills Act before it was set to take effect on July 1, 2017.[xvi] To begin with, the proposed bill allowed for notaries and witnesses to meet up by using a video link.[xvii] In addition, practitioners were worried that older testators suffering from diseases, like Alzheimer’s and dementia, would be exploited by loved ones and friends.[xviii] Thus, even though enacting electronic will legislation incorporated modernized technology into the will drafting process to save Florida citizens both time and money, the legislation did not sufficiently protect testators.[xix]
Although electronic will legislation did not pass in Florida, it is still likely that modernized technology will be incorporated into the will drafting process in the future.[xx] To begin with, the Uniform Law Commission recently formed a committee to draft a uniform law on electronic wills.[xxi] Also, the Trust and Estate Section of the Colorado Bar Association recently formed a committee to discuss implementing electronic will legislation into current statutes.[xxii] However, before other states consider incorporating electronic will legislation, it is imperative that those states implement sufficient safeguards to protect testators during the will-drafting process.[xxiii]
[i]. See David Horton, Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C. L. Rev. 539, 548 (2017).
[ii]. See Lee Rainie & Janna Anderson, The Internet of Things Connectivity Binge: What Are the Implications? Pew Research Ctr. (June 6, 2017), http://www.pewinternet.org/2017/06/06/the-internet-of-things-connectivity-binge-what-are-the-implications.
[iii]. Reinhardt Krause, IPhone Tap-To-Pay Rings Up Cool Factor Apple Enters Mobile Payments Apple Pay Feature with Credit Card Leaders, Takes on PayPal, Google, Investor’s Bus. Daily: Tech, Sept. 10, 2014, at A05.
[iv]. See Andreas Bernström, 4 Ways Technology Can Boost Efficiency in a Small Business, Huffington post, HuffPost (April 03, 2012, 1:35 PM), http://www.huffingtonpost.com/andreas-bernstr/4-ways-technology-can-boo_b_1400232.html.
[v]. See Ellen Lee, 5 Ways Technology Is Transforming Health Care, Forbes (Jan. 24, 2013, 11:40 AM), http://www.forbes.com/sites/bmoharrisbank/2013/01/24/5-ways-technology-is-transforming-health-care/#5b5e4cd26c52.
[vii]. Rachel A. Canfield, A Brave New Appellate E-World, Fla. B.J., Jan. 2016, at 75, 75.
[viii]. See id.
[ix]. See Joseph Karl Grant, Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will, 42 U. Mich. J.L. Reform 105, 108 (2008).
[x]. Id. at 117-18.
[xii]. Scott S. Boddery, Electronic Wills: Drawing a Line in the Sand Against Their Validity, 47 Real Prop. Tr. & Est. L.J. 197, 199 (2012).
[xiii]. See Jasmine Banks, Comment, Turning a Won’t into a Will: Revisiting Will Formalities and E-filing as Permissible Solutions for Electronic Wills in Texas, 8 Est. Plan. & Community Prop. L.J. 291, 298 (2015).
[xiv]. Id. at 299.
[xv]. See Jill Burzynski, Issues for Elders: Electronic Will Bill Luckily vetoed By Gov. Scott, Naples Daily News (July 5, 2017, 5:00 PM), http://www.naplesnews.com/story/news/local/communities/collier-citizen/2017/07/05/issues-elders-electronic-bill-luckily-vetoed-gov-scott/453440001/.
[xvi]. S. 206, 119th Sess. (Fla. 2017); Letter from Rick Scott, Governor, to Secretary Ken Detzner, Secretary of State (June 26, 2017); Boddery, supra note 12, at 199.
[xvii]. Burzynski, supra note 15.
[xx]. Morgan M. Weiner, Electronic Wills, Nat’l L. Rev. (July 5, 2017), http//:www.Natlawreview.com/article/electronic-wills.
[xxiii]. See Burzynski, supra note 12.