In 2017, the Florida Senate voted unanimously to authorize electronic wills (see here). Was that the end of the story? Nope. Former Gov. Rick Scott vetoed the bill, saying it failed to strike the proper balance between convenience and safety (see here).
So are electronic wills dead in Florida? Nope. With only days left in the 2019 legislative session, the Florida Senate again voted unanimously to authorize electronic wills (HB 409). And this time the bill got signed into law.
Is this a big change in Florida law? YES
Florida’s traditional approach to wills is to require “strict compliance” with all of the execution formalities (which date back almost two centuries to the UK Wills Act of 1837). The slightest slip up, no matter how inconsequential, can get your will tossed out of court (see here, here, here).
Electronic wills are a big change because it’s the first time Florida law’s retreated even slightly from strict compliance with will-execution rules developed in 19th century England.
But what about vulnerable adults, such as the elderly?
Survey data tells us most people believe having a will is important, but less than half have one. Electronic wills are intended to address this problem by making wills affordable and easily accessible to the average consumer using on-line tools that are ubiquitous in 21st century Florida. But did we go too far? Will this become yet another on-line trap for vulnerable adults, such as the elderly?
Not according to Florida’s elder-law attorneys. As reported here, Travis Finchum, representing the Bar’s Elder Law Section, is a supporter.
“We do believe it does address our concerns about vulnerable adults and individual who are susceptible to coercion and undue influence. … The stakeholders have listened to the Elder Law Section, taken our recommendations, and incorporated them into this version of the bill. So we are here to support the bill.”
And as reported here, shortly after the bill was rolled out, the Academy of Elder Law Attorneys’ Shannon Miller assured critics that vulnerable Floridians would be protected.
“We see this as progress,” Miller said. “The important parts of the bill from the elder law perspective are that it does not apply to vulnerable adults. They’re excluded. So the idea that someone would be able to go into a nursing home and take advantage of these vulnerable adults, that is actually not someone who is allowed to engage in remote witnessing.”
A summary of the key protective features built into Florida’s new electronic-wills regime is found in the Legislative Staff Analysis. Here’s an excerpt:
Unless the testator is a vulnerable adult [as such term is defined in F.S. 415.102], the witnessing of a will execution can be done remotely if:
- The individuals are supervised by a notary public;
- The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265, F.S.;
- The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
- In the case of an electronic will, the testator provides, to the satisfaction of the online notary public, verbal answers to the following questions:
- Are you 18 years of age or older?o
- Are you of sound mind?
- Are you signing this will voluntarily?
- Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?
- Has anyone forced or influenced you to include anything in this will which you do not wish to include?
- Did anyone assist you in accessing this video conference? If so, who?o Where are you? Name everyone you know in the room with you.
Will there be a rush to electronic wills? NO
The new legislation goes into effect on January 1, 2020. But I don’t expect electronic wills are going to become the norm anytime soon. Why? Because the type of electronic-wills legislation we’ve adopted in Florida requires a level of capital investment and specialized data-storage infrastructure few law firms are able to muster. If electronic wills gain widespread acceptance, it will likely be because of law companies like Willing.com, UnitedLex, Axiom, and Elevate.
Our legislation mandates that all electronic wills must be stored by a “qualified custodian,” subject to strict rules and regulations (as well as liability if anything goes wrong). Here’s how this aspect of the new law is described in the Legislative Staff Analysis:
A qualified custodian of an electronic will is a person who meets all of the following requirements:
- Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
- Consistently employs a system for maintaining custody of electronic records and stores electronic records containing electronic wills under the system; and
- Furnishes for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
A qualified custodian must maintain an audio-video recording of an electronic will online notarization. A qualified custodian is liable for the negligent loss or destruction of an electronic record and may not limit liability for doing so. The bill also prohibits a qualified custodian from suspending or terminating a testator’s access to electronic records. The bill requires a qualified custodian to keep a testator’s information confidential.
And this isn’t the only obstacle to wide-spread acceptance of electronic wills. In What Is an “Electronic Will”?, published in the April 2018 edition of the Harvard Law Review, the authors identified “six potential barriers to increased uptake of electronic wills.” Here’s an excerpt:
… Some scholars have identified potential reasons to doubt an increase in the creation of electronic wills. In 2007, [in an article entitled Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?,] Professors Gerry Beyer and Claire Hargrove identified six potential barriers to increased uptake of electronic wills, including: (1) technical barriers such as the lack of software that would provide adequate authentication, (2) social barriers such as attorneys’ reluctance to help create electronic wills, (3) economic barriers such as the expense of implementing new technology, (4) motivational barriers such as a lack of recognition of the potential benefits of electronic wills, (5) obsolescence barriers stemming from changes in technology, and (6) a general resistance to change. Even as they identified these important roadblocks, however, they recognized that change was on the horizon, noting that “we must be ready to make the transition when the time is right.”