Legislative Update: Electronic Wills in Florida
By: Brian V. Bergman, Esq.
We are often been asked by clients why a will must be signed twice. The practice seems redundant to many clients. In short, the practice is determined by long-standing law and procedure designed to confirm the validity of a will after the testator’s death.
A will is testamentary in nature, which means it speaks for you after your death when you can no longer speak for yourself. Therefore, our legal system has established certain procedures to ensure that an instrument purporting to be a decedent’s will is authentic and accurately reflects the decedent’s wishes. These procedures fulfill a gatekeeping function by creating a standard method for will creation and execution which protects the testator from exploitation and undue influence and enhances the reliability of the will after the testator’s death.
In order to be admitted to probate, a will must be signed with the following formalities: the will must be in writing; the will must be signed at the end; the testator’s acknowledgment or execution of the will must occur in the presence of two witnesses; and the witnesses must sign the will in the presence of the testator and in the presence of each other. These formalities are designed to verify that the testator had capacity to sign the will at the time of execution and was not signing the will under any form of influence. This ensures the integrity of the will when the testator is no longer alive to confirm or explain the contents of the will. A document that is not signed with these formalities will not be accepted for probate in the Florida legal system. These requirements are long standing features of the law governing wills and have stood the test of time.
Upon death, the proper execution of a testator’s will must be proven to the court. This requirement serves an additional gatekeeping function that gives the court the opportunity to verify that a document presented to the court as a decedent’s will was actually signed by the decedent and the witnesses with the proper formalities. However, a will can be made self-proving if the testator and the witnesses execute a self-proving affidavit before a notary public who authenticates the identity of the testator and the witnesses. If a will is not made self-proving, other evidence of proper execution must be presented to the court, which increases the cost and may be difficult if the witnesses cannot be located. While a will can be made self-proving any time after its execution, it is our practice to execute the self-proving affidavit at the same time the will is signed. This is why you sign the will twice.
In 2013, an Ohio court admitted to probate an electronic will drafted and signed on a Samsung Galaxy tablet. The testator was in the hospital at the time the will was drafted and had no other means to draft a will before his death. The court determined that the file saved on the tablet simply represented a new medium which otherwise satisfied Ohio’s statutory requirements for a will. Since that time, there has been a lot of discussion about whether the law regarding execution of wills should be revised to adapt to today’s technological environment.
In 2017, the Florida legislature passed a bill authorizing the use of electronic wills in Florida. Due to objections by the probate section of the Florida Bar, the bill was vetoed by Governor Rick Scott. This year, the Florida legislature passed a revised bill governing the execution of and proof of wills that will be effective on January 1, 2020. The new law fundamentally alters the required formalities of execution. Rather than relying on an original document, a will can now be signed by the testator and witnesses electronically and stored as a digital file, subject to certain requirements.
The law also creates a process for remote electronic notarization of documents, including wills. Under this new process, the witnesses and the notary public are no longer required to be in the physical presence of the testator or each other at the time a will is executed. Instead, a will can be signed through an internet based video conference and none of the participants are required to be in the same location. The new law requires the remote notary public to verify the identity of the individuals signing a document and to ask the testator questions designed to determine whether the testator is incapacitated or being influenced by a third party. However, it is uncertain at this time whether the statutory safeguards will promote the integrity of wills to the same extent as the historic execution formalities.
Conceptually, adapting the law of wills to modern technology makes sense. However, the new law is written in such a way that only providers with substantial resources will be able to offer remote notary services or long term electronic will storage. It is likely that these services will be bundled with online will drafting services. Websites that offer wills have already been in existence for some time now. The new services authorized by the new law will simply be additional revenue streams for these providers.
In the coming months, you may begin to see advertisements promoting the benefits of electronic wills. While there may be some benefit to using an online provider, the benefits are more than likely outweighed by the value you receive in working with an attorney who knows you and can adapt your estate plan to your specific circumstances. We are always available to discuss your needs as they change over time. If you have any questions about electronic wills or your own estate plan, please give us a call.