A person can manage nearly every aspect of their personal and financial affairs online. An individual can transact most affairs without any in-person meetings and without exchanging any physical documents, including filing taxes, opening bank accounts, and purchasing real estate.

California, like most other states, however, does not recognize electronic wills. Creating an enforceable will still requires the preparation and delivery of a physical document, the execution of that document in the presence of two witnesses, and the physical storage and safekeeping of the executed and witnessed original. California's Uniform Electronic Signature Law, which gives electronic contracts the same legal force as signed paper documents, excludes the creation and execution of wills, codicils and testamentary trusts.

Until recently, the debate over electronic wills has pitted the increased risk and insecurity that come with electronic transactions against the increased accessibility and affordability that technology provides. Only a handful of states—Nevada, Indiana, Arizona, and Florida—have enacted laws recognizing electronic wills. Bills recognizing electronic wills have been introduced in several states, including California, but those bills have stalled in committee or been withdrawn.

There are good reasons for state lawmakers' resistance to electronic wills. The strict requirements for execution of wills provide protection against fraud and undue influence and facilitate the orderly disposition of property upon death. There are readily identifiable eyewitnesses to confirm that the testator demonstrated sufficient capacity, acted voluntarily, and affirmatively consented to the terms of the will. The authenticity of the original document, if disputed, can be confirmed through close scrutiny of the "wet signature" on the original document. Moving to electronic wills, commentators and practitioners agree, opens the door to new forms of fraud and tampering and new opportunities for undue influence and coercion that may be difficult to detect and costly to litigate.

Proponents of electronic wills want to bring the low cost and convenience of electronic transactions to the world of estate planning. Allowing consumers to shop for estate planning services online and create and sign wills from the convenience of their homes makes estate planning more accessible and affordable. The risk of fraud and undue influence, the argument goes, is always present in estate planning transactions regardless of the medium used to execute the documents. Any increase in risk is offset by the many advantages technology provides. The COVID-19 pandemic adds a new and weighty argument in support of electronic wills: public health.

As the COVID-19 virus continues to spread through communities, the prospect of offering people electronic wills, remotely executed and virtually witnessed, has a whole new appeal. Most state and local governments have issued broad "shelter in place" orders, closed non-essential businesses, prohibited social gatherings, and encouraged "social-distancing." While the need for estate planning services is high, for many, putting a formal will in place requires in-person meetings and physical exchanges that expose the participants to infection and defeat the measures taken to slow the spread of the virus. These public health concerns will not disappear when COVID-19 is brought under control. Social distancing, electronic transactions, and virtual interactions will likely be encouraged, at least for the elderly and immunocompromised, for some time as a safeguard against a resurgence of COVID-19 or the spread of a new virus. If we have not reached the tipping point toward electronic wills, we will soon enough.

Kevin P. O'Brien is a senior associate on Hartog, Baer & Hand's litigation team. He can be reached at [email protected].