Modernizing the Will Drafting Process: Does Electronic Will Legislation Really Protect Testators?
Natalie Fischer
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.
[vi]. Id.
[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.
[xi]. Id.
[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.
[xviii]. Id.
[xix]. Id.
[xx]. Morgan
M. Weiner, Electronic Wills, Nat’l
L. Rev. (July 5, 2017),
http//:www.Natlawreview.com/article/electronic-wills.
[xxi]. Id.
[xxii]. Id.
[xxiii]. See Burzynski, supra note
12.
