I previously reported here on the “Florida Electronic Wills Act”. The legislature passed this bill back in May over strong opposition from the Real Property, Probate and Trust Law Section of The Florida Bar. For the public policy arguments for and against the bill, see here and here.
Proving once again that in politics, as in baseball, “it ain’t over till it’s over,” Gov. Rick Scott just vetoed the Electronic Wills Act, even though it was enacted by the Florida senate on a 34-0 vote.
What’s interesting about this process is that the governor doesn’t just issue a veto and leave it at that; he publishes a letter explaining the reasons for his veto. If you’re a trusts and estates lawyer, no matter what your views may have been on the wisdom of this legislation, you’ll find the governor’s veto letter interesting reading. Here’s an excerpt:
The bill creates the “Florida Electronic Wills Act” which authorizes the creation of electronic wills, and provides that the execution of electronic wills may be witnessed and notarized through the use of remote technology. The bill also specifies that electronic wills of residents and nonresidents may be probated in Florida.
This bill has generated much debate among stakeholders who seek to find the right balance between providing safeguards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible to a greater number of Florida’s citizens. While the idea of electronic wills is innovative and may transform estate planning for Floridians, I believe this bill fails to strike the proper balance between competing concerns.
As Governor, I oversee the appointment of notaries public in the State of Florida and have a responsibility to ensure that notaries safeguard the most vulnerable Floridians against fraud and exploitation. While the concept of remote notarization is meant to provide increased access to legal services like estate planning, the remote notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction and are not cohesive with the notary provisions set forth in Chapter 117, Florida Statutes.
Furthermore, providing an additional Florida venue for the probate of nonresident wills based only upon the qualified custodian’s location in this state could burden Florida’s court system with the probate of estates that may have no Florida nexus other than that the wills were created and stored here. Additionally, if the state where the decedent is domiciled does not recognize electronic wills as a valid declaration of intent, the individual could be left intestate.
Furthermore, I have concerns with the delayed implementation of the remote witnessing, remote notarization, and nonresident venue provisions of this bill. The Legislature delayed these provisions to April 1, 2018, in order to address “substantive changes and outstanding questions” during the next legislative session. Rather than sign an imperfect bill into law, I encourage the Legislature to continue to work on answering these outstanding questions and address the issues comprehensively during the next legislative session.
For the reasons stated above, I withhold my approval of . . . House Bill 277 and do hereby veto the same.