I recently spoke on Florida’s statutory authorization of electronic wills and it got me thinking once again about how consequential — or not — this legislation really is. Spoiler alert: as a practical matter, I think it was much ado about an interesting idea that’s likely to see very little real world application.

Backstory:

In 2017, the Florida Senate voted unanimously to authorize electronic wills. 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.

So were 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 in HB 409. And this time the bill was signed into law and can be found in probate code sections 732.521 through 732.525. This new legislation went into effect on January 1, 2020.

Was this a big change in Florida law?

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 as a matter of legal doctrine because it’s the first time Florida law’s retreated even slightly from strict compliance with will-execution rules developed in 19th century England. Is this a big change in terms of the real world? I don’t think so. (I have lots to say on this point at the end of this blog post.)

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.”

The statute’s anti-fraud measures:

A summary of the key protective features built into Florida’s electronic-wills regime is found in the Legislative Staff Analysis. Here’s an excerpt:

Unless the testator is a vulnerable adult, the witnessing of a will execution can be done remotely if:

  1. The individuals are supervised by a notary public;
  2. The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265, F.S.;
  3. The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
  4. 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?
    • 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.

By the way, you get to the statute’s “vulnerable adult” exclusion in a roundabout way. First, F.S. 732.522 tells us you can’t electronically witness a will unless the process is “supervised by a notary public in accordance with s. 117.285.” F.S. 117.285 then tells us electronic witnessing isn’t valid if the person whose document is being witnessed is a vulnerable adult (as defined in F.S. 415.102).

Will there be a rush to electronic wills? NO

I don’t expect electronic wills are going to become the norm anytime soon. Why?

First, there’s a lack of certainty. Electronic wills are automatically invalid if the testator’s a “vulnerable adult.” Sounds good, except that the statutory definition of vulnerable adult is so broad and open to after-the-fact subjective interpretation, it’s likely any electronic will that’s signed by an elderly person that in any way deviates from the norm isn’t going to get enforced. Here’s how that term’s defined in F.S. 415.102:

“Vulnerable adult” means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Second, an electronic will’s not valid unless it’s in the custody of a “qualified custodian,” and few law firms (if any) can muster the level of capital investment and specialized data-storage infrastructure needed to comply with that requirement. Here’s how the requirements to be a qualified custodian are 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.

If electronic wills ever gain widespread acceptance in Florida it will likely be because of the scale and resources that only law companies or other large corporate actors can bring to bear. Entities like that will have the resources to be “qualified custodians,” not law firms.

And we can already see some movement in that direction. Shortly after our electronic-wills legislation was adopted the internet start-up primarily responsible for its passage, Bequest, INC (d/b/a Willing), was sold to corporate giant MetLife. Here’s an excerpt from the press release announcing that deal that hints at MetLife’s business strategy for electronic wills:

“Willing serves a digitally native audience unlikely to go see an attorney for estate planning services,” said Todd Katz, executive vice president, Group Benefits at MetLife. “Willing complements Hyatt Legal, our existing legal services offering, and positions us to lead the industry by offering customers more choices in how they address their estate planning needs.”

Finally, the “law industry” is famously adverse to change. And electronic wills are exactly the kind of “change” that makes most estate planners break out in hives. 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,” including “a general resistance to change.” 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.”