Electronic Wills: Coming Soon to Michigan?

Electronic Wills: Coming…

Technology has always changed the way people communicate and transact business, and in the past few decades, the pace of that change has only intensified. If you’re fifty years old, for example, you remember when research had to be done in a library using the card catalog; banking happened in person at the bank (not even at an ATM!); and telephone calls only happened on a phone plugged into a wall (or in a phone booth).

Now, of course, we can do research, bank, and make phone calls, plus much more, with a small device we carry around in our pockets. It’s hard to think of a process that hasn’t changed in the last several years due to technology. Even contracts and court filings can be signed electronically.

The one process that hasn’t changed a whole lot in the last few decades? Estate planning, specifically creating a will. Sure, your lawyer might transmit the document to you electronically for review, but you still had to sign the piece of paper and have it witnessed in person, just like always. It seems quaint, almost archaic. But is technology bringing wills into the 21st century at long last?

Why Haven’t There Been Electronic Wills Before Now?

It seems odd when you think about it: you can pay bills online, apply to college online, bank online, sign contracts online, make purchases online...why can’t you make a will online? Wills need to be signed, yes, but you can sign a lot of other documents electronically. Why not a will?

The answer has to do with the Uniform Electronic Transactions Act (UETA), which was approved by the Uniform Law Commission way back in the last days of the 20th century. The UETA’s 1999 approval allowed people to conduct all kinds of business electronically, and nearly every state has adopted it. It is because of the UETA that people are able to sign bilateral (two-sided) contracts electronically. However, a will is unilateral, signed by only one party. Wills are specifically excluded from the scope of the UETA.

But now that most people do everything from ordering food to scheduling medical appointments to banking and executing contracts online, they have begun to wonder why they can’t make and sign a will electronically, too.

Paving the Way for Electronic Wills

As with many situations, the evolving law around electronic wills is a response to real-life situations that became court cases. In one, In re Estate of Castro, No. 2013ES00140 (Ohio Ct. Common Pleas, Prob. Div., Lorain County, June 19, 2013) an Ohio man named Javier Castro dictated his will to his brother. The brother wrote down the will not on a piece of paper, but on an electronic tablet device. Javier Castro used a stylus to sign the document on the tablet, and two witnesses did the same. The court in the Castro case found that the will’s electronic writing met the requirement of the Ohio statute that a will be “in writing.”

The court in Castro was able to make the leap between a writing that was done on paper and one that was done electronically. Because the will also had two witnesses as required by law, it was admitted to probate. But what happens in a situation where an electronic will is not, or is not able to be, witnessed?

A Michigan case sheds some light on that question. In re Estate of Horton, 925 N.W. 2d 207 (Mich. Ct. App. 2018) deals with the issue of a will written on an electronic device (in this case, a phone) without having been witnessed. Duane Horton, before his suicide, made a handwritten entry in a journal pointing to a document called “Last Note” in the Evernote app on his phone, along with directions for opening this document. He left the phone and journal in his room prior to killing himself.

The note, opened after Horton’s death, left instructions about how his property should be disposed of, along with apologies and references to his suicide. At the end of the note, he typed his name. The Michigan court considered the note’s contents and the circumstances under which it was written (as well as Horton’s subsequent death) and decided it constituted a will under Michigan’s “harmless error” law.

Can an electronic writing be a valid will? Now that courts have begun answering that question with a “yes,” the next logical step is for laws to be written authorizing electronic wills.

Can an electronic writing be a valid will? Now that courts have begun answering that question with a “yes,” the next logical step is for laws to be written authorizing electronic wills.

The Uniform Electronic Wills Act

In July 2019, the ULC approved the Uniform Electronic Wills Act (UEWA). The UEWA, like existing law, requires wills to be written, signed, and attested to by witnesses. However, these requirements have been adapted for current realities.

The “writing” requirement means that the will must be in electronic text, a visually readable form. The UEWA does not permit audio and video wills (unless those recordings were transcribed into writing before the maker of the will signed it).

The will must be electronically signed by the maker, and that signature must be witnessed, usually by two witnesses. The UEWA allows individual states to decide whether they want the option of allowing remote witnesses, who are virtually present, to witness a will. As of this writing, only a few states permit attestation to a will by remote witnesses.

The “harmless error” doctrine that permitted the Horton will to be upheld in Michigan gives courts the latitude to uphold a will under certain circumstances even if there were deficiencies in how it was executed. Although only a minority of states currently have this doctrine in effect, the UEWA adopts it.

It remains to be seen which states will adopt the Uniform Electronic Wills Act, to what extent, and when. But while wills written on paper are not going away any time soon, it seems clear that electronic wills aren’t either.

If you have questions about electronic wills, we invite you to contact our law office.

Categories: Estate Planning

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