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Are electronic wills coming to a state near you?
As estate and trust practitioners we are used to working with paper, lots of paper. There certainly is a trend toward going “paperless” or “paper-less,” which begs the question: why don’t we have a paperless Will statute in Illinois? We know that there is a long-standing tradition in the Illinois Probate Act of 1975 (“Probate Act”) which requires for a Will to be admitted to probate, that it must be in writing and properly attested to by two or more credible witnesses.1 Of course there are cases that expand on this concept and one might try to admit a Will to probate with only one witness and see if it is challenged within 42 days. However, we still don’t have any direct statutory basis in Illinois for a non-paper based Will product.
Nevada Revised Statute 133.085 – Electronic Will
1. An electronic will is a will of a testator that:
(a) Is written, created and stored in an electronic record;
(b) Contains the date and the electronic signature of the testator and which includes, without limitation, at least one authentication characteristic of the testator; and
(c) Is created and stored in such a manner that:
(1) Only one authoritative copy exists;
(2) The authoritative copy is maintained and controlled by the testator or a custodian designated by the testator in the electronic will;
(3) Any attempted alteration of the authoritative copy is readily identifiable; and
(4) Each copy of the authoritative copy is readily identifiable as a copy that is not the authoritative copy.
2. Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of his or her estate, real and personal, but the estate is chargeable with the payment of the testator’s debts.
3. An electronic will that meets the requirements of this section is subject to no other form, and may be made in or out of this State. An electronic will is valid and has the same force and effect as if formally executed.
4. An electronic will shall be deemed to be executed in this State if the authoritative copy of the electronic will is:
(a) Transmitted to and maintained by a custodian designated in the electronic will at the custodian’s place of business in this State or at the custodian’s residence in this State; or
(b) Maintained by the testator at the testator’s place of business in this State or at the testator’s residence in this State.
5. The provisions of this section do not apply to a trust other than a trust contained in an electronic will.
6. As used in this section:
(a) “Authentication characteristic” means a characteristic of a certain person that is unique to that person and that is capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using a unique characteristic of the person.
(b) “Authoritative copy” means the original, unique, identifiable and unalterable electronic record of an electronic will.
(c) “Digitized signature” means a graphical image of a handwritten signature that is created, generated or stored by electronic means.
(Added to NRS by 2001, 2340).
The Past
Practitioners know that society, as well as the practice of law, is changing. The days of carbon paper and typewriters are well in the past and to some degree, the fax machine is becoming seriously dated. Clients are starting to be advised to not only keep a copy of their Health Care Powers of Attorney in their automobile glove boxes, but also to store them on their phones, tablets and computers.
Since 2000 we have had the Electronic Signatures in Global and National Commerce Act (E-SIGN)2 which Congress passed to facilitate the use of electronic records and electronic signatures in interstate commerce by ensuring the validity and legal effect of contracts entered into electronically. This legislation was one step toward using technology to effectuate and legitimize non-paper based contracts.
In 2002 the Illinois Supreme Court allowed for electronic filing in Illinois circuit courts of civil case documents as a pilot program. In 2012 the Supreme Court announced statewide standards and principles to permit and encourage all circuit court clerks to apply for approval form permanent e-filing procedures. The Supreme Court announced in October of 2014 that e-filing will be expanded to allow trial courts to begin e-filing of court documents in criminal and traffic cases.
The Future
As we enter a new era of technology, practitioners must be flexible and at least keep up with the times, if not embrace them. Consequently, one must ask whether or not Illinois will move in the direction of embracing an electronic form of a Last Will & Testament. To the author’s knowledge, there has been no recent legislation proposing the electronic Will concept in Illinois.
The Judicial Electronic Will
On June 19, 2013 Judge James Walther ruled that a Will written and signed on a tablet computer is legal in the State of Ohio.3 Reportedly, the testator and the witnesses signed the Will on a tablet with a stylus. The testator died, the family printed out a copy of the Will and tendered it to the probate court. The Ohio probate statute provides that a Will “shall be in writing, but may be handwritten or typewritten”4 and the Judge ruled that the electronically signed Will met the statutory requirements of a valid Will.
Query whether, under the same facts, an Illinois will signed on a tablet or similar electronic device might be considered valid by a probate Judge given that it is considered “a writing” under the Probate Act.
The Statutory Electronic Will
There is one “cutting-edge” State that has adopted the electronic Will concept. Yes, one of those non-income tax and non-estate tax states, the State of Nevada. Appended at the end of this article is the Nevada statute on electronic Wills5 and one might notice that it was adopted in 2001.
A valid electronic Will in Nevada requires the testator’s electronic signature and at least one “authentication characteristic.”6 The statute defines this phrase as a “fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using a unique characteristic of the person.”7 The authentication characteristic, being a fairly strict requirement, will add additional cost and likely make it more efficient to execute a traditional paper based Will. Another notable barrier to entry is that E-SIGN excludes Wills, Codicils or Testamentary Trusts.8
Legitimate Concerns
Perhaps some practitioners will have concerns about the safety, confidentiality, fraudulent tampering and the like with an electronic Will. While others will be concerned about the long-term storage of electronic Wills and protecting them from hardware and software issues; not to mention the practical hassle of having each county implement a procedure to deal with an electronic Will.
Conclusion
Is the electronic Will likely to come to a state near you in the near future? Although electronic Wills have some practical appeal for the tech-savvy generation, given the security, privacy and authenticity concerns, they are not likely to pick up steam in the near future. However, don’t count them out. As the younger generations that communicate with and utilize technology gadgets enter into our courts and legislatures, we will see a demand for an electronic Will statute sooner than we might expect. As with the transfer on death instrument, it sometimes takes a few years for Illinois to catch up.9 ■
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