electronic-willsSilicon Valley entrepreneurs and venture capitalists have deployed digital tech to change the way we live, eat, and shop. And they’ve aggressively moved into crucial professional services industries like healthcare and finance. But the  practice of law is one slice of the economy that’s remained stubbornly resistant to disruption. That’s slowly changing.

Case in point: Florida’s new Electronic Wills Act, which promises to make wills affordable and accessible to the more than half of all U.S. adults who don’t currently have wills. (As currently drafted the statute won’t go into effect until April 1, 2018.)

For families who don’t require particularly complex estate planning, electronic wills will likely become the norm in the not too distant future, as recognized by the Uniform Law Commission, which recently formed a drafting committee to work on a uniform electronic wills act.

Not surprisingly, this disruptive change isn’t being driven by lawyers, it’s driven primarily by the young tech savvy entrepreneurs behind an internet startup called Willing, a web-based company that allows users to complete their own estate planning documents online.

Willing’s legal advisory board is made up of two giants of the trusts and estates academic world, Profs. John H. Langbein (Yale Law) and Robert H. Sitkoff (Harvard Law), and a representative of one of Wall Street’s most influential law firms, Daniel L. Mosley, a partner in Cravath’s NYC trusts and estates department. Together they’ve co-authored a white paper laying out the practical and public policy arguments in favor of electronic wills, posted here on Willing’s website. Here’s the abstract:

To make a valid will, all American states require a person to comply with a set of formalities that trace back to a pair of statutes enacted by Parliament centuries before the invention of the light bulb. These formalities generally require a will to be in writing, signed by the testator, and witnessed by at least two people. There are good reasons for requiring formalities to make a will. Nevertheless, the traditional will formalities have not adapted to an evolving technological context in which nearly all transactions—including massive end-of-life transfers under pension plans, brokerage accounts, life insurance policies, and the like—can be made electronically. Accordingly, this paper argues in favor of legislation authorizing electronic wills made in compliance with a set of electronic formalities suited to the modern age. These reforms would improve access to will-making while facilitating the integration of wills with the many other methods of deathtime transfer that operate outside the law of wills.

Florida Bar Calls for Additional Safeguards:

The Real Property, Probate and Trust Law Section of The Florida Bar (“RPPTL Section”) came out publicly against the Florida Electronic Wills Act, arguing in this white paper that as originally drafted the act didn’t contain sufficient safeguards to protect testators from exploitation. The RPPTL Section was especially concerned about the act’s authorization of witnessing via remote video webcam technology, in lieu of requiring physical presence. Here’s how the section summed up its concerns:

If the Florida Legislature were to decide that witnesses no longer need to sign a will in the testator’s physical presence, the Proposed Act will still need to include specific changes to prevent fraud and exploitation during the will execution process, including safeguards to protect testators against fraud, undue influence and duress. Those safeguards should include, at a minimum, requirements that the testator be asked a list of fundamental questions confirming that their act in signing the will is voluntary and free of undue influence, to identify all other persons present with the testator, and provide a 360-degree view of the room as part of the execution ceremony. The Proposed Act must also include safeguards aimed at confirming that testators possess sufficient testamentary capacity at the time of executing an electronic will.

The drafters of the Florida Electronic Wills Act apparently took the Bar’s concerns seriously, and have incorporated extensive safeguards into the final version of the statute. For example, under subsection 732.525(1)(8) of the act a testator is required to provide verbal answers to all of the following questions while being videotaped:

  • Are you over the age of 18?
  • Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?
  • Are you of sound mind?
  • Did anyone assist you in accessing this video conference? If so, who?
  • Has anyone forced or influenced you to include anything in this document which you do not wish to include?
  • Are you signing this document voluntarily?

And the video of the electronic execution ceremony must be recorded and stored for future reference, which goes way beyond the current traditional safeguards for executing wills. Here’s an excerpt from that portion of the new act (732.525(1)(9)):

A time-stamped recording of the entire video conference must be identifiable with the document being signed and stored in the electronic record containing the document by a qualified custodian in the manner required pursuant to s. 732.527(1)(c) for the storage of electronic records containing electronic wills.

What’s next?

I’m guessing the act’s 2018 effective date is no accident. This gives everyone another year to iron out any remaining statutory kinks before it all goes live. For more commentary on Florida’s electronic wills statute and electronic wills generally, see here, here, here. I expect we’ll be hearing a lot more about electronic wills over the next year. Stay tuned for more . . .

Full Disclosure:

I’m not an unbiased observer when it comes to electronic wills. I believe they’re inevitable, they’re good public policy, and they shouldn’t be viewed as a business threat by trusts and estates lawyers (for more on this last point, see From Data to Wisdom). Based on those beliefs I’ve agreed to serve as an advisor to Willing and my firm owns a tiny stake in the company.