By: William Schena

 

Electronic wills are starting to become more popular as legal tech continues to develop. As of August 2023, twelve states and the District of Columbia have passed legislation that validates electronic wills. Although electronic wills may be convenient for those who do not want to leave the comfort of their home, the process of executing an electronic will may lead to increased probate litigation.

 

Typically, the process of creating and executing an electronic will starts with an executor creating a will and sending it to a notary electronically, and then they have a video conference with the executor. The notary will typically ask a series of questions. In Florida, for example, the notary will ask questions such as:

 

 

Typically, the witnesses of a signing must be in the presence of the executor. If the witnesses are not in the presence of the executor, there may be additional questions the notary is required to ask, such as:

 

 

In Florida, a remote witness must hear the executor or signer acknowledge the signature. Additionally, self-proof affidavits can also be electronically witnessed and notarized if the record is kept by a “qualified custodian”. In Florida, a qualified custodian must comply with specific criteria, including:

 

 

The goal of these requirements seem clear: prevent fraud and ensure that the testator’s wishes are honored. While this option may be viable for testators with simple wills, it may not make family members of the testator comfortable. Family members of a testator with many assets may not feel comfortable with the testator executing a will without following the typical will requirements.

 

When there are more assets at stake, there are greater possibilities for probate litigation. Family members who wish to contest a will may have a more convincing case, especially when there are claims of undue influence, duress, coercion, lack of mental capacities, and other claims. Looking at Florida’s protocol for notarizing and witnessing a will, it feels like there are many opportunities for an actor to witness a testator. For example, a testator may lie and say that nobody is in the room with them or that nobody assisted them with the preparation of the documents.

 

Further, there is anecdotal evidence that suggests that electronic wills are susceptible to fraud, undue influence, and beneficiaries taking advantage of a testator’s lack of capacity. For example, one attorney recounts an incident where an older client had a home health care aid use an online service to print a will, which instructed the representative to leave all her assets to the home health care aid. Although electronic will drafting may be more convenient for a client, it seems like it will open a can of worms that could otherwise be avoided.

 

Even if the client wanted to leave all of her assets to the home health care aid, there is ample room for litigation. For example, if a descendant finds out that the will was printed by the home health care aid, and then everything was left to them, they will likely think that sounds fishy. Regardless of whether the testator truly wanted to leave their estate to the home health care aid, there are a variety of theories a descendent may try. They may say that the testator was being coerced by someone who oversees their care or that the testator did not have the capacity. A probate court in that scenario may decide there is a legitimate question of fact as to whether or not the testator legitimately executed their will. Regardless of the outcome, litigation will consume a court’s valuable time.

 

Overall, states are trending towards legalizing electronic wills. While it may be more convenient for some testators, probate courts sitting in states that have legalized electronic wills should be aware of possible litigation. Legislatures should also consider the implications of recognizing electronic wills. The courts are busy enough as it is, and electronic wills may provide sources of litigation that may otherwise be unnecessary. Disgruntled family members may claim that the testator was coerced, lacked capacity, or under duress when they were drafting their will. The traditional process of going to an attorney’s office with the required witnesses and signing your will seems much less susceptible to litigation than executing an electronic will.

Student Bio: Will Schena is 2L at Suffolk University Law School and a Staff Member on the Journal of High Technology Law. Will studied Political Science at the University of Massachusetts Amherst.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.