By: Sheridan Maxey
Most people fear death. Humans generally do not like the idea of acknowledging the fact that we all will, someday, meet our makers, return to the earth, kick the bucket, or experience whatever euphemism one would replace for death. Some people find difficulty thinking about the present as it is now, and the future that is yet undetermined.[1] There are some who find their peace of mind by way of drafting and executing their last wills and testaments.[2] It is widely believed that creating a will is difficult, or that obtaining an attorney is necessary to draft a will; these beliefs are not necessarily true. In Virginia, a will can be fully handwritten, without an attorney, and will be considered as valid so long as the testator (the one drafting the will and whom the will is for) signs the document and that this fact is proven by two disinterested witnesses.[3] Additionally, a will not wholly in the testator’s handwriting is valid if the testator places his signature on the will and at least two witnesses present at the time sign their names on the will as well.[4]
Wills are not a new legal construction, people have been writing wills in many different fashions for centuries.[5] As time goes on, technological advances creep into the many different aspects of our lives. Of course, wills are not precluded from the scope of technological advances. With the vast integration of computers into our lives a new question is posed: Should electronic wills be considered valid under the current laws of wills?[6] If you were to ask the Uniform Law Commission, the minds behind the promulgation of the rules known as the Uniform Probate Code, they would answer in the affirmative.[7]
A number of states, including Virginia, have had bills proposed that would follow the footsteps of the Uniform Law Commission in legitimizing electronic will forms.[8] Virginia ultimately did not adopt the language of the proposed bill that would have validated electronic wills if they were written, created, and stored in an electronic record.[9] Currently, only three states have enacted electronic wills statutes, those being Arizona, Indiana, and Nevada.[10] Proponents against electronic wills believe that the acceptance of this will form would lead to less testators’ intents being followed because they are using boilerplate wills instead of having them specifically drafted by a lawyer.[11] What is peculiar is that printed out, boilerplate wills are typically followed in all states so long as they follow the governing state’s will formality requirements.[12]
The groundwork has been laid down for the states to follow[13], but it is difficult to determine whether the majority of the states will subscribe to example set by the Commission. For one, the meaning of “electronic will” differs depending on the person speaking the term.[14] Some would consider the term to mean wills that are primarily stored on servers or in the cloud[15], others would believe that the term only encompasses wills in which the testator and witnesses signed the document with an electronic signature. As time moves on and technology progresses further, it is likely that we will see more issues arising regarding electronic wills and probate courts nationwide will have to make determinations on the matter. For now, we must wait and see what the future holds.
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[1] See Susan Gubar, Living Intimately With Thoughts of Death, N.Y. Times, (Jul. 25, 2019), https://www.nytimes.com/2019/07/25/well/live/living-intimately-with-thoughts-of-death.html.
[2] See Eugene Tomine, Estate Planning Provides Peace of Mind, Nichi Bei, (Oct. 17, 2013), https://www.nichibei.org/2013/10/estate-planning-provides-peace-of-mind/.
[3] See Va. Code Ann. § 64.2-403 (2019).
[4] See id.
[5] See Pollock v. Glassell, 43 Va. 439 (1846) (holding that a marriage settlement gives a wife power to dispose of an estate if she signs the document and has the requisite number of witnesses).
[6] See Ashlea Ebeling, Electronic Wills Are Coming Whether Lawyers Like It Or Not, Forbes.com, (Jan. 17, 2019, 9:49 AM), https://www.forbes.com/sites/ashleaebeling/2019/01/17/electronic-wills-are-coming-whether-lawyers-like-it-or-not/#6473172671df.
[7] See Uniform Electronic Wills Act (2019), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=43c08ac6-d6e0-bd80-80b2-85c3a6621e1e&forceDialog=0.
[8] See Dan DeNicuolo, The Future of Electronic Wills, Bifocal, (Oct. 15, 2018), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue-5–june-2017/the-future-of-electronic-wills/.
[9] See H.B. 1643, V.A. Legis. (2017).
[10] See Ebeling, supra note 6.
[11] See id.
[12] See Cal. Prob. Code § 6110 (2019); see also Tenn. Code Ann. § 32-1-104 (2019).
[13] See supra note 7.
[14] See Developments in the Law — More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018).
[15] See id.