Pasternak & Fidis Reporter

July 26, 2018

OPINION: Electronic Wills? Maybe, But Not Like This

B22-0169, the Electronic Signature Authorization Act of 2017, is pending before the DC Council, and it is dreadful.  The Uniform Law Commission (ULC), relevant sections of the DC Bar, and a number of DC Fellows of the American College of Trust and Estate Counsel (ACTEC) have submitted, formally or informally, written opposition to the bill.  We have it on good authority that this bill is unlikely to pass, and we hope that is the case.

Are electronic wills coming?  Of course they are.  Last year in Australia, an unsent text message was accepted for probate as someone’s last will and testament.  (Unsent!  With an emoji in it!)  In July of this year, the Michigan Court of Appeals affirmed a trial court decision to accept for probate an entry saved in an app on a decedent’s smartphone.  As estimable and time-honored as the practice of writing wills may be, we are not so antediluvian as to think this field of human endeavor alone is immune to technological advances.  However, B22-0169 and bills like it are not the right way to bring will execution into the modern era.

There are many traps for the unwary with electronic wills (How do I revoke it?  What if it was saved on my phone and then I got a new phone and didn’t mean to erase it?  Which digital file is my “original” will?  How will anyone find my attesting witnesses later when my will is challenged if they only saw me sign it via Skype?  How will anyone even know that it was really me who signed it?  Or where I really was when I signed it?  What state law applies if I signed it in DC but my witnesses were in Nevada?).  Any legislation on electronic wills should be designed to solve more problems than it creates.  B22-0169 and bills like it are not the thoughtful product of a careful balancing of the desire for expediency and ease-of-use against consumer protection concerns and the risk of elder financial abuse.  They are instead the product of technology companies seeking to sell DIY wills (advertising them via scare tactics that make intestacy sound a lot more expensive than it really is for persons of limited means) without concern for the integrity of the process or the document’s quality and without thinking through all these traps for the unwary.

As advances in medicine increasingly keep people alive long past the point of capacity, incidences of fraud and undue influence are already likely to increase, and advances in technology already make mischief easier.  B22-0169 and bills like it would exacerbate these problems by (among other things) dispensing with the requirement that a will be attested by two witnesses in the testator’s presence.  As a result, people who think they are saving a few thousand dollars of legal fees (and avoiding the dreaded evil of intestacy) by preparing their own DIY wills online may leave their families with tens or hundreds of thousands of dollars of legal fees for will contests and related litigation.

The ULC has a drafting committee working on a uniform act, which includes Fellows of ACTEC, other estates and trusts law practitioners, law professors, and even representatives of the technology companies that want to sell electronic wills.  Yours truly has attended the committee meetings as a (somewhat noisy) observer.  That committee is giving careful thought to electronic wills and all the implications they have.  We hope the DC Council and other state legislatures considering electronic wills legislation will wait for the ULC work product rather than enacting rushed bills that would help only app vendors at the expense of the public good.