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The Uniform Electronic Wills Act

Uniform Electronic Wills Act: https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71 

The Uniform Law Commission (the “UCL”) is an American organization that model legislation in areas where it believes that it would be beneficial for the laws of the different states to be uniform. One such bill is its Uniform Electronic Wills Act (the “EWA”), which was approved by the ULC in 2019.

A brief description of the EWA on the ULC’s website notes that it is already common for many documents to be prepared and executed electronically, but that an exception is often created for wills due to the unique concerns around authenticating a document that is often not read until after its creator has died. On the other hand, the ULC’s comments on the EWA note that many people are accustomed to conducting all sorts of personal business electronically, and might expect to be able to make their wills the same way, without actually knowing whether those wills are invalid. The ULC expects an increase in electronic will cases in the future, has observed that several states have already passed or considered electronic will legislation, and has aimed to provide guidance to other states in addressing this growing issue.

The EWA would establish definitions of “electronic will” and “electronic presence,” as well as a definition of “sign” that explicitly includes electronic signatures. S. 3 would establish that “[a]n electronic will is a will for all purposes of the law of this state”. A valid electronic will must be a “record,” meaning “information that… is retrievable in a perceivable form,” and must be “readable as text at the time of signing”. It must be signed by the testator, and either signed by two witnesses or acknowledge by the testator before a notary. The witnesses or notary are permitted to be in the testator’s electronic presence, which means that they are communicating with the testator in real time as if physically at the same location. States are encouraged to “conform” these model provisions to their own particular execution requirements.

S. 6 would create a “harmless error” provision, which allows a will that does not comply with the execution requirements to potentially be validated if it is readable as text and was intended to be a will. S. 7 would allow an electronic will to be revoked by the creation of a new will, or by a “physical act” that indicates an intention to revoke it. S. 9 would allow an individual to create a certified paper copy of an electronic will by affirming that it is a complete, true, and accurate copy, while the drafters’ comments suggest that states should also allow for electronic court filings. In keeping with the ULC’s mission, s. 10 notes that “consideration must be given to the need to promote uniformity of the law with respect to its subject matter” when applying the EWA in any state that has enacted it.

In short, the EWA would broadly validate wills that are stored as electronic text, allow for remote witnessing of wills, and give some guidance on revocation and other procedures. It would do these things because its creators anticipate that a growing number of testators will attempt to make electronic wills, and believe that the law should catch up to current technological trends. Though not created by a legislative body, it is intended to be available to any state government that wishes to adopt it.

The ULC’s website currently lists Utah as the only state that has enacted the EWA. It was signed by the governor on August 31, 2020. This does not mean that Utah is the only state with electronic will legislation, as a small number of states have enacted bills of their own. In Nevada, for example, an electronic will can be valid if it has been signed and dated electronically by the testator, and at least one of the following conditions is met: the will has been notarized electronically, it has been signed electronically by two witnesses, or it includes “an authentication characteristic [such as a fingerprint or a video recording] of the testator”.

Even in states that still do not allow electronic wills, the COVID-19 pandemic has motivated some governments to at least allow for remote witnessing, just as it has done in Ontario and other parts of Canada. Whether the pandemic motivates a trend toward further expansion of electronic will legislation will be an interesting question on both sides of the border.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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