Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Electronic Wills-Dispensing With Pen and Paper (Part I)

Will Requirements

Historically, will requirements and execution rituals have provided a protective framework to help ensure that the preparation and execution of the document is free of forgery, fraud and undue influence. In addition, having witnesses helps ensure that the testator possessed the requisite testamentary capacity at the time he signed his will. The witnesses’ observation of the testator’s signing of his will also ensures the authenticity of the document, providing an evidentiary foundation for the admission of the will to probate.

The addition of Uniform Probate Code §2-503, sometimes referred to as the “harmless error doctrine,” liberalized the requirements for the execution of wills or codicils. This section, to a large extent, created a mechanism by which courts could admit, by clear and convincing evidence, flawed wills which may fail to meet the strict technical requirements necessary for probate if the court is satisfied that the document was intended as a will.

The modern trend followed by courts throughout the United States has been to relax the technical requirements for both typed and holographic (handwritten) wills. In Colorado, the applicable statute governing holographic wills requires only that the “material portions” of the document be in the decedent’s handwriting. Moreover, testamentary intent may now be established by reference to typed or preprinted language on a hybrid will, so long as the dispositive provisions are in the decedent’s handwriting. Colorado courts have been unwilling to extend the harmless error doctrine to unsigned documents purporting to be a will. However, other state courts have recognized the validity of writings intended as wills scratched into the fenders of tractors, boards and even women’s undergarments.

Recently courts in the United States and throughout the world have artfully used the harmless error doctrine and statutes permitting electronic signatures to admit copies of electronic wills.

The distinction between “paper” and “electronic” documents continues to be eroded by developing technology. As of November 2016, 88% of American adults use the internet; 77% of Americans own a smart phone; and 78% of Americans 18 years or older own a tablet or computer.

Remote Notarization

The National Law Commissioners in 2016 amended the Revised Uniform Law on Notarial Acts (“RULONA”) to address remote notarizations only for people who are physically outside of the territorial United States. In the 2016 legislative session, Colorado Senate Bill 17-132 was introduced by a group called Notarize. This Bill would have permitted remote notarization through audio/video technology where the notary would not be required to be in the physical presence of the signer. Virginia, Montana, Nevada, Texas and Florida have passed legislation permitting remote notarization. As more states adopt statutes for electronic wills, those states will also have to address whether or not to permit remote notarization through the use of audio/video technology. Senate Bill 17-132 was withdrawn by Notarize in order to allow Colorado further study.

Electronic Wills

Electronic wills have been upheld by several courts in the United States and throughout the world. Nevada is currently the only state that has an electronic wills statute since, in a very recent development, the Florida Governor just vetoed electronic wills. The biggest challenge facing electronic wills is how the document will be executed, witnessed, notarized and stored. In the near future, internet service providers are going to offer electronic will applications which will include remote notarization for phones, tablets and computers at a relatively low price. It is also anticipated that these internet service providers will offer remote witnessing and notarization by way of a webcam or other video device, as well as storage of electronic wills.

Another impediment to creating valid electronic wills is the requirement that the testator affix an electronic signature or personalized mark to the digitized electronic will. The Colorado Probate Code does not define the term “signature”. Black’s Law Dictionary defines “electronic signature” as “an electronic symbol, sound, or process that is either attached to or logically associated with a document (such as a contract or other record) and executed or adopted by a person with the intent to sign the document.” Some of the types of electronic signatures include a typed name at the end of an e-mail, digital image of a handwritten signature, and the click of an “I accept” button on an e-commerce site.

Electronic signatures are commonly used today in “e-business” transactions. The use of this technology raises important questions for will drafters and probate courts in the Twenty-First Century. Could an electronic signature act as valid authentication for a will that exists only in electronic form or stored on a disc or flash drive? Would an electronic will be more vulnerable to fraud and forgery than a paper document? What issues are raised in the preservation and storage of electronic wills?

Estate of Castro

In 2013, the Ohio Court of Common Pleas, in the case of In re Estate of Javier Castro, admitted an electronic will to probate. In 2012, Javier Castro was hospitalized. Castro was a chef and Jehovah’s Witness who was not married and had no children. Castro’s treating physicians advised him to undergo a life saving blood transfusion. Castro declined the transfusion for religious reasons with the understanding that his refusal would ultimately result in his death. While Castro was in the hospital, he told his brothers that he needed to prepare a will. Because Castro had no paper or pencil, one of his brothers suggested that the will be prepared on his Samsung Galaxy tablet. In the presence of his two brothers, Castro orally stated the terms of his will and his brother transcribed what Castro told him on the Samsung screen using the tablet’s stylus. Before Castro could sign the digital will, he was transferred to a Cleveland hospital, where he later signed the will on the Samsung tablet using the stylus in his brothers’ presence. After Castro’s passing, his brothers printed the will onto paper and then presented the paper copy for probate.

The Ohio Probate Code required the testator to be at least 18 years of age, of sound mind and memory, under no undue constraint and to follow certain formalities. To be a valid will, it had to be (1) in writing; (2) signed at the end by the testator or some other person at the testator’s direction and in his presence; and (3) attested or subscribed to in the conscious presence of the testator by two or more witnesses.

Castro’s electronic will, however, contained no attestation clause above the witnesses’ signatures so admission to probate did not meet the technical requirements of the Ohio statute. The trial judge, however, ultimately admitted the will to probate based upon a will saving statute (similar to Uniform Probate Code § 2-503 and Colorado Probate Code, C.R.S. § 15-11-503) to rescue a noncompliant, defective will. The Ohio statute provided that: after hearing, the court must find, by clear and convincing evidence, that the decedent
(1) prepared or caused the document to be prepared;
(2) signed the document and intended the document to constitute his or her will; and (3) that the document was signed in the conscious presence of two or more witnesses.

As a threshold matter, the court had to resolve the question of whether Castro’s digital document on the Samsung tablet was a “writing”. Because the Ohio Probate Code did not define a “writing,” the trial judge turned to a section in the Ohio Criminal Code which provided that a “writing”, in the criminal context of theft and fraud, “means any computer software, document, letter, memorandum, note, paper, plate, data, film, or other thing having in or upon it any written, typewritten, or printed matter, and any token, stamp, seal, credit card, badge, trademark, label or other symbol of value, right, privilege, license or identification.” Using this broad definition, the trial court found that the will on the Samsung tablet was a “writing” because it contained the stylus marks made on the tablet and it was saved through the application of software.

In Castro there was no opposition to the probate of the will. Given the unrebutted testimony of Castro’s siblings, they were able to meet their burden of proof regarding the admissibility of the document by clear and convincing evidence. One must question, if the will had been contested, whether the result would have been the same.

The Fall newsletter will contain Part II of this article and will specifically address proposed legislation regarding electronic wills.


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