David Little of Hartog, Baer & Hand.

A valid will in California must be in writing, signed by the testator (Prob. Code Section 6110). This means a physical writing. Electronic documents, with electronic signatures, are valid for many transactions in California under the Uniform Electronic Transactions Act (Civ. Code Sections 1633.1–1633.17). The UETA, however, does not apply to wills (Civ. Code Section 1633.3(b)(1)). In an increasingly paperless world, is it time to update the law to allow electronic wills?

The common law in some states has recognized the validity of electronic wills. In Taylor v. Holt (134 S.W.3d 830 (Tenn. 2003)), the Tennessee Court of Appeals upheld a will written by the testator on his computer and signed with an electronic version of his signature. The will was witnessed by two people who were physically present at the testator's singing, and who signed a specially drafted attestation clause acknowledging the testator's electronic signature (Taylor v. Holt, supra, 134 S.W.3d at p. 830-831). The Tennessee court found that the electronic signatures complied with Tennessee law allowing a signature on a will to be made by "any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record." 

In Estate of Javier Castro (2013ES00140 (Lorain Cnty. Ct. Com. Pl., 2013)), an Ohio trial court ruled that a signature on an electronic will made by the testator using a stylus on a Samsung Galaxy Note tablet was valid. The electronic will itself was found to be valid under Ohio's "harmless error" law, which allows a will that is otherwise not executed with the proper legal formalities to be considered valid if sufficient evidence is presented to show that the testator intended the document to be their will (In re Estate of Javier Castro 27 Quinn.Prob.Law Jour. 412, 417-417, interpreting Ohio Rev. Code Ann. 2107.24). California's "harmless error" law is codified in Probate Code Section 6110(c)(2).  

Perhaps the most prominent application of a state's harmless error law to an electronic will is Estate of Horton (325 Mich.App. 325 (Mich. Ct. App. 2018)). Duane Francis Horton II wrote an entry in his journal directing the reader to look on his phone for what he referred to as his "farewell." The journal entry was in Horton's own handwriting. The farewell was on his Evernote app in his phone in an entry titled, "Last Note" and included, among other information, a paragraph about the disposition of Horton's property. The court noted that under Michigan's harmless error law, "any document or writing can constitute a valid will provided that 'the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent's will." The court held that the extrinsic evidence introduced by the proponents of the Evernote will was sufficient to meet the clear and convincing evidence standard, and "strongly supports the conclusion that the decedent intended the electronic note to constitute his will."  

Although an electronic will can be held valid under existing state laws, proving this validity has required lengthy, expensive (and risky) litigation. Legislation specifically tailored to electronic wills would avoid resorting to court involvement to validate an otherwise noncompliant electronic will.

So far, three states have enacted legislation permitting electronic wills: Nevada, Indiana and Arizona (Nev. Rev. Stat. Ann Section 133.085; Ind. Code Ann. Section 29-1-21; Ariz. Rev. Stat. Ann. Section 14-2500). Other states, including Florida, New Hampshire, Virginia, the District of Columbia and, California, have pending legislation on electronic wills.  

AB 1667 was introduced in the California Assembly in February 2019. It is known as the "Electronic Wills Act." The act amends Probate Code Section 6113 and adds Chapter 2.5 to Part 1 of Division 6 of the Probate Code, Sections 6115 through 6115.20.  

The act amends Probate Code Section 6113, regarding choice of law, to specifically apply to "written or electronic" wills. The act defines an electronic will as "a writing in a textual record, with the intent that the textual record be the testator's electronic will, by either the testator or another individual in the testator's name, in the testator's conscious presence, and at the testator's direction" (AB 1667, Section 2 (Proposed Section 6115.4(a)(1)). "Conscious presence" is not defined in the act.  

The act allows two or more witnesses to sign an electronic will electronically "in the physical or electronic presence" of the testator (AB 1667, Section 2 (Proposed Section 6115.4(b)). "Electronic presence" is defined as "individuals in different locations who are able to communicate in real time by sight and sound [e.g. via Skype]." There is no requirement that witnesses reside in California or even in the United States. The act allows an electronic will to be revoked by a subsequent will, or "a revocatory act that is not a record, if it is established by a preponderance of the evidence that the testator preformed the act with the intent of revoking the will, in whole or in part, or that another individual performed the act in the testator's physical presence and at the testator's direction." A "record" is defined as "information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form." 

The act is currently active, but no hearings are set. The future of the bill is not certain. You can track the bill by going here and typing in "AB1667."  

Given the continuing digitization of our world, it seems inevitable that the law will have to change to accommodate electronic wills.

David D. Little is certified specialist in estate planning, trust and probate Law and an attorney with Hartog, Baer & Hand. He can be reached at [email protected].