As this blog post is being written, and possibly as you read it, the United States is in the grip of the coronavirus pandemic. The pandemic has led many people to think about their estate planning in light of COVID-19. The coronavirus also has many of us working and learning remotely, leading to the realization that many things we are used to having take place in person can take place electronically.
It was only a matter of time before someone tried to write a will on an electronic device, and before the validity of that will was questioned in court. In fact, such a case arose in Ohio several years ago. A man named Javier Castro dictated his will to his brother. The brother transcribed the will on an electronic tablet. Javier himself signed the will on the tablet with a stylus; two witnesses signed the tablet, affirming his signature.
In 2013, the Lorain County Probate Court ruled that the will was valid. Ohio wills are required to be in writing, and the court concluded that the electronic writing met that requirement. Ohio wills also must be witnessed by two people, and the Castro will met that requirement as well.
The Uniform Electronic Wills Act (UEWA) was drafted after the Castro case and before the coronavirus pandemic, but the pandemic makes the provisions of the UEWA more timely than ever. The UEWA reflects the recognition that more and more of our interactions and activities take place online, and that electronic devices are increasingly necessary tools in our lives. Let’s take a look at what the UEWA involves, and what it could mean for you.
It makes sense that there should be legislation regarding electronic wills. After all, if you think about it, many other important transactions have been taking place electronically for years. But the Uniform Electronic Transactions Act (UETA) specifically excludes the creation of electronic wills from being governed by that act. The UEWA proposes to fill that gap, and modernize the law of wills and codicils.
What does the UEWA do? To start with, it would update Ohio Revised Code section 2107.03, which speaks to the method of making a valid will. As the law stands, a will must be written, either handwritten or typewritten. If the UEWA is adopted, the law will provide that a will executed completely in an electronic format will be as valid as if it were written using paper and ink. The will would still need to be executed “in the conscious presence of two subscribing witnesses.”
The UWEA follows and builds upon the Uniform Probate Code (UPC). The UPC states that a will is valid if witnessed by two people within a reasonable time or whose signatures are acknowledged before a notary. The UPC contains a “harmless error” provision that is fairly broad. If someone argues that a will should be considered valid, and presents clear and convincing evidence of the deceased person’s intent that the document act as their will, the court can overlook harmless errors in execution. Under the UPC, self-proving affidavits are permitted. A self-proving affidavit is a sworn statement attached to a will, signed by the person making the will (the testator), affirming that it is valid.
The use of electronic media to create a will leads to a reasonable question: what is considered a “writing” under the UEWA? For instance, could an audio and video recording of a testator stating how property should be distributed be considered a “written will?” The answer is no: The electronic will must be a record, retrievable in perceivable form, that is “readable as text at the time of signing.”
The UEWA continues the requirement that a will be executed in the presence of others, but leaves it up to states adopting the Act as to whether that presence must be physical, or whether it can be remote/electronic. In general, the UEWA seems to try to avoid creating unnecessary obstacles to the recognition of wills that reflect the testator’s intent.
How would an electronic will be revoked? Under the UEWA, it is preferred that a will be revoked by the creation of a subsequent will. However, a will can also be revoked by a physical act. With a paper will, revocation by a physical act is fairly simple: the original document can be torn up or burned. With an electronic will, things are more complicated, since there might be multiple copies identical to the original. Therefore, revoking an electronic will by physical act (such as deleting it from a device) would involve proving, by a preponderance of the evidence, that the testator intended to revoke the will by that act.
Electronic wills may be the wave of the future, but today, they are still in their infancy, with many questions unanswered. If you want to make a valid Ohio will, your best bet is to contact an experienced Ohio estate planning attorney rather than to turn to your electronic device.