We live in an age of technology, and it is truly amazing. Twenty years ago in some North Carolina communities, residents were a half hour or more from the nearest grocery store. Now you can shop for groceries on your phone. You can also file taxes on a tablet, use your voice to turn the heat up on your thermostat, and, seemingly, there isn’t anything you can’t do. So why not electronic wills?
Of course, technology is also scary. Not quite I, Robot scary (yet!), but our use and, dare we say, reliance on it, exposes sensitive information to the world. We’ve heard the horror stories of theft, exploitation, and fraud for years. These concerns only grow as the integration of our lives and our devices strengthens.
The legitimate fears of overexposure and criminal intent are some of the primary reasons our legal system remains archaic in many ways. For example we still require an original will (see our recent blog post on this topic here) and filing of deeds. Advancements are being made, but old-fashioned legal formalities have their place. In estate planning, these formalities are vital. That’s why electronic wills have failed to gain the traction many expected they would.
Before we dive in there, though, let’s lay some groundwork:
What is an electronic will? Oversimplified, it is a digital document that is electronically signed by the testator, witnesses, and notaries.
What is the benefit? Assuming other digitally signed documents, such as powers-of-attorney, are acceptable, individuals could have an attorney draft, sign, and implement their estate plan without ever leaving their home.
Where are they allowed? Currently, only Nevada recognizes an electronic will as a valid will.
Are Electronic Wills the Way of the Future?
So, why is Nevada the only state that recognizes electronic wills? The state of Florida’s failed attempt at recognizing electronic wills may hold the answer. Governor Rick Scott of Florida wrote in his veto letter that his state’s proposed law fails to “adequately ensure authentication of the identity of the parties to the transaction.” In a similar vein, the Florida Bar added that the proposed law failed to protect testators from fraud and exploitation.
Essentially, this was Florida saying that electronic wills aren’t safe. Their take on electronic wills would have allowed a testator to merely type their name during a videoconference, with witnesses and an attorney or notary present on the feed. Unfortunately for proponents, the proposed law’s inadequate digital signature verification left too much room for bad actors to compromise the integrity of what was being signed. The bill’s videoconferencing approach also broadened the possibility for undue influence. Even if an attorney asks a testator if anyone else is present, it would be difficult to verify.
What’s more is that other states have also attempted to allow electronic wills through passing of legislation. These states include Arizona, Indiana, New Hampshire, and Virginia. All of these states have failed to make their proposed bills into law.
A North Carolina Hurdle
Similar arguments would be made if North Carolina attempted to pass similar legislation. However, at a more fundamental level, North Carolina law adds another obstacle to the implementation of electronic wills. For there to be a valid attested will in North Carolina, NCGS Chapter 31 requires (i) that a testator sign or acknowledge the will “in the presence” of his or her witnesses and (ii) that the witnesses “sign the will in the presence of the testator.” Our courts have decided that “in the presence” requires a line-of-sight. This means that if a testator cannot physically see a witness sign the will, then that witness’ signature is not valid. Thus, for an electronic will to be valid, courts must be willing to accept that videoconferencing provides a clear line-of-sight.
In other words, widespread recognition of electronic wills has a long way to go. Each state sets its own requirements for what constitutes a valid will. Therefore no single uniform law is likely to govern their acceptance. Our state’s rigid formalities fundamentally complicate electronic will acceptance here, and even in Nevada where electronic wills are explicitly recognized, research by the American Bar Association shows that the majority of Nevada estate planning attorneys have never dealt with an electronic will.
In short technology is changing the legal landscape and electronic wills may very well be on the horizon. Until then, though, the best way to accomplish your testamentary goals is to meet with an attorney who knows the law and its formalities, and who can help you design a plan that best fits your needs. The attorneys at NC Planning are happy to help you get started.