Electronic Wills

What Is an Electronic Will?
Only a few years ago it would have been hard to imagine how much we now accomplish online. We can form and run businesses, sign commercial contracts, and purchase agreements online. We can even buy our groceries or purchase or sell an automobile online. Yet most state’s laws still require that to effectively sign a will, the willmaker must appear in person in front of witnesses to sign a document that is printed on paper. Under Michigan law, a will is generally not valid unless it is in writing, signed by a willmaker who is over the age of 18, and witnessed by two other people. Most states have very similar requirements. There is a good reason for these rules. Courts need to be able to determine whether a will is authentic after the person who made the will has died. By requiring that a willmaker follow these rules, a court can verify that the willmaker had sufficient mental capacity when they signed the will, that they signed it voluntarily and not under duress or threat, and that the will reflects the willmaker’s wishes.

Still, we live in a digital world now, and courts are increasingly being asked to determine whether a will that was created and stored on a computer, tablet, or cell phone and signed electronically meets the traditional requirements of being “in writing” and “signed by the will maker”. The COVID-19 pandemic increased our familiarity with virtual meetings and conversations. So, another question arises. Can a witness who virtually observed the signing of a will but was not physically in the presence of the willmaker satisfy the traditional requirement that witnesses must be physically present as the will is signed?

What States Allow Electronic Wills?
To answer these questions, several states have begun to adopt legislation that specifically permits electronic wills. Nevada, Indiana, Arizona, Florida, Illinois, and Maryland have all enacted legislation to permit electronic wills. In 2019, the Uniform Law Commission (a nonprofit organization that drafts model state legislation) passed the Uniform Electronic Wills Act (UEWA), a set of model laws for states that may want to enact legislation permitting the use of electronic wills. The UEWA maintains the traditional formalities of writing, signature, and attestation by witnesses but adapts them to some of the technological advances of the modern age. For example, a will that is written in some form of text and e-signed is valid; however, an audio or video will would not be valid unless it was transcribed before the willmaker signed it. Regarding the requirement that witnesses be physically present, states can enact a version that requires witnesses to be physically present or a version that allows for virtual witnessing. The UEWA has no requirements as to the custodianship or storage of electronic wills, although a state can enact its own requirements. To date, Colorado, Utah, North Dakota, and Washington have adopted the UEWA in some form. And other states are sure to follow; Massachusetts, the District of Columbia, and the US Virgin Islands have recently introduced the UEWA.

Developments in Michigan
Michigan has not enacted any laws permitting electronic wills, but an electronic will was found valid by court decision. In 2018, the Michigan Court of Appeals ruled in a published decision, In re Estate of Horton, that a decedent met the requirements for a valid will in a document stored on his cell phone. Although the note did not meet either the traditional formal requirements for a will or the requirements for a handwritten holographic will, the court ruled that there was clear and convincing evidence that the decedent intended for the note to constitute his will.

Should I Use an Electronic Will?
In Michigan, is it enough to rely on a court decision that recognized an electronic will?  If your state’s law allows you to use an electronic will, should you? While a Michigan court might recognize an electronic will, court proceedings will be necessary to present proof of testamentary intent. A judge will have to decide whether to recognize what is offered as the will. Even in states that recognize electronic wills, there are still some good reasons to stick with the old-fashioned hard-copy will drafted by an attorney.

Electronic wills have a greater potential for abuse and the exercise of undue influence, duress, or coercion. It may be difficult to verify who actually created the electronic document. Elderly people are susceptible to abuse, and the risk is even greater if no one knows who is off-screen directing the elderly person on what to do with their money and property after their death. There is also the risk of increased litigation over whether a willmaker had the mental capacity to execute a will. For people who have considerable money and property or who may be disinheriting a family member, an electronic will is an enticing invitation to potential heirs to litigate over the estate.

In addition, there is still a lot of uncertainty surrounding e-wills. For example, in states such as Nevada, Arizona, and Florida, which have extensive rules about custodianship of a will, there are few e-will custodians who meet the rules. Also, questions still exist about what constitutes revocation of an electronic will. For instance, does deleting the will from your computer constitute revocation? 

For people with minimal amounts of money and property who may not otherwise create a will, the ease of making an electronic will simplifies the process. For others, a traditional will is a safer approach. For many others, a living trust may be an even better option. To be sure, this is an area of law that is developing quickly, and electronic wills may soon become the norm. If you need to create or update your will, call us. We can discuss the options available to you to make sure that your wishes are properly expressed and carried out.