Reasons for the Uniform Electronic Wills Act

The Uniform Electronic Wills Act (UEWA) was drafted to address two related concerns: the growing demand for digital execution of wills and the increasing likelihood that people would attempt to create electronic wills even without clear legal rules.

An early memorandum to the Electronic Wills Drafting Committee summarized the policy motivations behind the project.

Core Policy Concerns

The memorandum framed the issue around two fundamental questions:

1. Whether people should be able to execute wills electronically.
2. Whether legal rules are needed to address situations where someone attempts to do so.

1. Demand for Electronic Wills

Supporters argued that many people would prefer electronic wills because they offer:

• Ease of execution
• Potential cost savings
• Consistency with electronic will substitutes
• Familiarity with digital transactions
• The possibility of an electronic will vault or searchable registry
• Risk of fragmented legislation

2. People Will Attempt Electronic Wills Anyway

Even without statutory authorization, people are already attempting to create wills using electronic devices such as tablets and phones.

Electronic wills may therefore represent the modern equivalent of holographic wills — informal attempts by testators to record their intentions.

3. Legislative Pressure from Industry

Private companies seeking to develop electronic will platforms are likely to propose legislation enabling electronic wills.

The drafting committee viewed the uniform law project as a way to provide a coherent framework rather than allowing fragmented statutes to emerge across different states.

4. Uniformity

Existing will formalities might sometimes be interpreted to accommodate electronic wills. But relying on traditional statutes would produce uncertain and inconsistent results. Courts could reach different conclusions depending on how they interpret requirements such as “writing” and “signature,” and states might amend their statutes in different ways.

Without a uniform framework, the law governing electronic wills could develop unevenly across jurisdictions, creating significant uncertainty and potential problems for interstate recognition.

Source

The following excerpt comes from an October 2, 2017 memorandum from Suzy Walsh, Turney Berry, and Susan Gary to the Electronic Wills Drafting Committee regarding the First Drafting Committee Meeting:

I. What Problem Are We Trying to Solve?

We should begin by thinking about why we are trying to draft a uniform law for electronic wills. First, is there a need for people to be able to execute wills electronically? Second, is there a need for legal rules that will address the situation that arises when someone tries to execute a will electronically?

A. People Want Electronic Wills

We hear that people want to be able to execute wills electronically. Reasons include:

• Ease of execution
• Cost savings
• Alignment with will substitutes
• Comfort - everything else is electronic
• Electronic will vault - a searchable database stored with the court would make finding a will easier after someone dies.

Are these reasons worth considering? Are there other reasons we should consider?

B. People Will Try to Execute Wills Electronically Anyway

We have already seen cases involving tablets and other electronic devices. People are going to attempt to execute wills themselves, and they may use the devices that are handy or comfortable. People have for years executed holographic wills, and electronic wills are the new version of what some people may think they should be able to do.

Note that electronic execution is different from a testator's use of an electronic form to draft a will, if the testator then prints the document, signs the will, and has it witnessed.

C. Companies Will Draft Bills for Legislatures

Companies want to create a market for electronic wills and will encourage legislatures to adopt statutes that create a way to validate an electronic will. Our committee may be able to provide an alternative, with input from the companies and the Bar. Our committee could consider all aspects of the issue and create a uniform act that could lead to some coherence around the country.

II. Existing Frameworks

A. Electronic Writing Is "Writing" for Existing Statutes

The Ohio case validated a will written on a Samsung Galaxy tablet because it was "in writing," signed by the testator and signed by two witnesses. Current statutes could be interpreted to accept electronic wills if executed by the testator and two witnesses, all of whom sign on the electronic page.

The downside of relying on existing statutes is that the results will be haphazard with no clear policy, because the outcome will depend on the judge. Inconsistency will also follow if statutes are modified by states without uniformity. And if statutes are not uniform, recognition between states will be a significant issue