Electronic Wills – Update

• Author: John Gregory
• Date: July 13, 2018

In January of this year, I canvassed developments on electronic wills in Australia, New Zealand, England & Wales, the U.S. and Canada. Since that time, the Uniform Law Commission (ULC)’s drafting committee in the U.S. has been moving the file forward. I am not aware of any law reform action Down Under, and the Law Commission of England & Wales is still thinking about it. Canada is discussed later in this column.

UNITED STATES

In late July, the ULC will give first reading to an Electronic Wills Act. The “Annual Meeting Draft” is quite compact yet covers the subject comprehensively. That said, it does not purport to change the common law of wills or to restate it, with one exception. See articles 3 (the common law and principles of equity continue except as modified by this legislation) and 4 (an e-will may be made by any adult who is mentally competent and free from duress or undue influence.) It works to add an electronic version to the existing law. An explanatory memorandum is also available to outline the policy issues faced by the Drafting Committee and its responses to them.

Execution

The draft Uniform Act deals with execution of the will by electronic means, including by the usual two witnesses. Their electronic signing is done by any technology; as on paper, the testator and the witnesses all sign the same document. The proposed statute does not say how this is to be done. In fact, the Drafting Committee expressly wanted to avoid any obligation to use specific technology. It was concerned that various private e-will services springing up would create lack of uniformity – and lack of clear standards – across the country, which would be harmful in a mobile society.

That said, the e-will must be in writing, even though in electronic form. A video or audio recording is not enough. This rule requires the draft Uniform Act to define electronic writing separately from the established ULC definition of “record,” which the ULC has been using for a quarter-century to permit electronic documents. For the purposes of other ULC statutes, a record (which includes what common-law Canada would call an electronic document) satisfies a writing requirement. The proposed e-wills statute narrows that possibility.

However, the draft Uniform Act relies in a couple of places on electronic notarization. The Uniform Probate Code allows witnesses to be replaced by a notarial declaration, and some states have adopted that rule. If so, the proposed statute would allow for...