Modernizing the Law to Enable Electronic Wills

By Daniel L. Mosley, Robert H. Sitkoff, and John H. Langbein

A Note from Willing:

Since launching in 2015, we heard from a lot of customers who struggled with the requirements for creating a will. They wanted to know: Can’t I just sign online, electronically? Can I store my will online with Willing?" In each case, the answer was no, unfortunately not — wills still live in the physical, pen-and-ink world, and their execution calls for the physical presence of witnesses and a notary.

We learned that the execution requirements were causing some people to procrastinate indefinitely when it came to making a will, or to make mistakes when signing that meant they hadn’t created a valid will when they thought they had. We wanted to come up with a solution. So, we worked with our Legal Advisory Board and other experts to examine the law in depth and think about how it could be updated to leverage technology while preserving its important functions. The result was this paper, which provided the foundation for our efforts to pass the Electronic Wills Act in a number of states.

As the legislation has moved along, we’ve heard both strong support and strong opposition. Naturally — and rightly — folks who practice in this area care a lot about getting it right. We also care a lot about getting it right, and to that end we welcome any and all input. We want nothing more than to have a constructive relationship with all interested parties, because we know it’ll make for better laws. If you’d like to engage with us, please do so by reaching out to ewills@willing.com.

Update (5/5/2017): The Florida Electronic Wills Act has passed the legislature and is on its way to the Governor!

Abstract

To make a valid will, all American states require a person to comply with a set of formalities that trace back to a pair of statutes enacted by Parliament centuries before the invention of the light bulb. These formalities generally require a will to be in writing, signed by the testator, and witnessed by at least two people. There are good reasons for requiring formalities to make a will. Nevertheless, the traditional will formalities have not adapted to an evolving technological context in which nearly all transactions—including massive end-of-life transfers under pension plans, brokerage accounts, life insurance policies, and the like—can be made electronically. Accordingly, this paper argues in favor of legislation authorizing electronic wills made in compliance with a set of electronic formalities suited to the modern age. These reforms would improve access to will-making while facilitating the integration of wills with the many other methods of deathtime transfer that operate outside the law of wills.

I. INTRODUCTION

Technology is everywhere in modern American life. Using computers, smartphones and tablets, people can purchase almost any conceivable item and communicate instantaneously with others around the world. At the same time, businesses have used technology to become more efficient and profitable, and governments have employed technology to serve their citizens more quickly, conveniently and effectively.[1]

The law has made these advances possible by actively fostering the use of technology in commerce. Statutes such as the Electronic Signatures in Global and National Commerce Act (“E-SIGN”), which Congress enacted in 2000, and the Uniform Electronic Transactions Act (“UETA”), which the Uniform Law Commission promulgated in 1999 and which has been enacted in nearly every state, have firmly established the principle that electronic documents and signatures should be given the same legal effect as paper and ink.[2] Modern commercial life would be impossible without these statutes—they make it possible for people to do their banking online, purchase a book on Amazon.com and order an Uber car to pick them up.

The law governing the execution of wills is a notable exception to the technological and legal progress that has improved people’s lives in recent decades.[3] In order to make a valid will, most American states require a person making a will (the “testator”) to satisfy three core “will formalities”: (1) writing—the will must be in the form of a writing;[4] (2) signature—the will must be signed by the testator; and (3) attestation—the will must be signed by at least two witnesses, who attest to the testator’s signature.[5] These three core formalities predate the invention of the light bulb—across the country, they have remained largely unchanged for hundreds of years and, as we will see, are not generally thought to apply to electronic media.

At the same time, a system parallel to the law of wills allows individuals to pass property at death without going through probate court or complying with the will formalities. “Nonprobate” modes of transfer, such as inter vivos trusts, life insurance, and transfer-on-death bank, brokerage and pension accounts contain the majority of Americans’ wealth,[6] but are governed by other bodies of law, and thus are not subject to the will formalities.[7] Because these other bodies of law have embraced technology to a greater extent than the law of wills—and in fact are subject to both E-SIGN and UETA, which validate electronic documents and signatures—electronic media are already familiar, and even sanctioned, in the context of the most common deathtime transfers. [8]

Yet there are good reasons for the will formalities. As we discuss below, the formalities are intended to provide evidence of the testator’s intent, caution him as to the significance of making a will and protect him from fraud and duress. They have endured in part because “[w]hen the court is asked to implement the testator’s intention, he will inevitably be dead and unable to authenticate or clarify his declarations.”[9] In the technological age, however, when many other significant transactions (including nonprobate wealth transfers) can be made electronically, the question arises whether the formalities should adapt to accommodate digital execution.

We believe that the process of making and validating a will can be effectively translated into an electronic format that preserves the functions of the original formalities. This would bring the advantages of technology to bear on end‑of‑life planning, allowing more people to provide for a thoughtful disposition of their property at death. Accordingly, this paper will argue for laws expressly permitting electronic wills by way of a digital writing, signature and attestation (and, where applicable, electronic notarization) using well-established technologies already recognized in commercial contexts, including in the nonprobate system. In making this argument, we both (a) acknowledge the value of the formalities and their present inseparability from many states’ law of wills; and (b) endorse the sound policy of Congress, and of nearly every American state, that electronic documents and signatures should be treated exactly the same as paper documents and ink signatures—and we urge the application of that policy to the law of wills.

In Part II below, we discuss the ways property can be transferred at death, including the uses and benefits of wills. We continue in Part III to survey the history and policy basis of the will formalities. In Part IV, we identify trends in statutory and case law that suggest that jurisdictions in America and abroad are already moving toward the policies we endorse in this paper. We also discuss the prominent role of technology in the nonprobate system. We conclude in Part V by explaining how the will formalities can be adapted to the modern age and noting the many benefits of modernization.

MODES OF PROPERTY SUCCESSION

There are two main ways that property is transferred at death: (a) through the “probate system”, which is governed by the law of wills (or in the absence of a will, by the laws of “intestacy” discussed below), and (b) the “nonprobate system”, which is not governed by the laws of wills or intestacy, but rather by the law governing the mode of transfer at issue. As we will see, the nonprobate system has assumed a far greater importance in the last 50 years—today, Americans are able to pass (and in many cases, do pass) virtually all of their property outside the probate system, without being required to comply with the safeguards of the will formalities. This “nonprobate revolution” points toward the legal and practical basis for the modernization of the will formalities that we endorse in this paper.

Wills and the Probate System

Under American law, “[p]roperty owners have the nearly unrestricted right to dispose of their property as they please”,[10] both during their lives and at their deaths. This policy of “freedom of disposition” is the “organizing principle of the American law of succession”,[11] and has been recognized by the U.S. Supreme Court as a Constitutionally protected property right.[12] As the American Law Institute has stated, “American law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his property. The main function of the law of wills is to facilitate rather than regulate.”[13] As Harvard Law School Professor Robert H. Sitkoff has described it:

“The American law of succession embraces freedom of disposition, authorizing dead hand control, to an extent that is unique among modern legal systems. Within the American legal tradition, a property owner may exclude his or her blood relations and subject his or her dispositions to ongoing conditions . . . The right of a property owner to dispose of his or her property on terms that he or she chooses has come to be recognized as a separate stick in the bundle of rights called property.”[14]

A will is the traditional legal tool that allows an individual to exercise his freedom of disposition. By making a will, a person can choose what happens to his property following his death—in other words, a will says who receives what, when and how[15] (and can also say why). The testator can also name a “personal representative”, commonly called an “executor”, to carry out his wishes following his death.[16] Just as importantly, the parents of young children can use their wills to name a guardian to care for their children—and indeed, this is often a prime motivation for young people to make wills.[17] For these reasons, a will is often an essential part of a person’s end‑of‑life plan.

A person who dies without a will does not exercise choice regarding who receives his probate property, who administers his estate or who will care for his minor children. Instead, the decedent’s probate property passes to default takers under applicable “intestacy laws”. These intestacy laws, which are standard, one-size-fits-all schemes, typically give the decedent’s property to the next of kin (e.g., a spouse, children, siblings, etc.) in varying shares.[18] The local court will appoint a person—who may or may not be a relative—to serve as the decedent’s personal representative to collect, hold and distribute the decedent’s property in accordance with these intestacy laws, and who will collect a fee for doing so.[19] The local court will also appoint one or more persons, who again may or may not be relatives, to assume the care of the decedent’s minor children and/or to manage their property (and again collect a fee for doing so), based on the court’s judgment as to the best interests of the children.[20]

The Nonprobate System

Other property passes at death in ways that are not subject to the laws of wills or intestacy. Such property is commonly called “nonprobate” property because it is not part of the probate estate of the deceased person; consequently it is not disposed of by a will or by the intestacy laws. Instead, nonprobate property passes in accordance with a death beneficiary direction left by the decedent in accordance with the rules applicable to the particular mode of nonprobate transfer at issue. Typically, these rules are set in some kind of governing instrument, such as a trust document or an agreement between a decedent and an institution that holds or manages his account. Most Americans hold some nonprobate property, even if they also have a will.[21]

Distinguished Yale Law School Professor John H. Langbein has referred to the various nonprobate transfer vehicles as “free-market competitors of the state-operated [probate] system of transfer on death”.[22] Professor Langbein has identified five major types of nonprobate “will substitutes”:

“(1) [T]he revocable inter vivos trust; (2) life insurance; (3) various types of pay-on-death (POD) bank accounts; (4) transfer-on-death (TOD) securities accounts; and (5) pension accounts, primarily of the individual-account variety.”[23]

In addition, property owned in “joint tenancy” passes automatically upon the death of one joint owner to the surviving owner(s). For example, spouses’ homes and bank accounts are often held in joint tenancy. Similarly, many states have adopted the revocable transfer-on-death deed, whereby an owner of real property can name a beneficiary to receive a given piece of real property automatically upon his death, without going through probate.[24]

The defining characteristic of nonprobate property is that it passes outside of probate, without will formalities. In fact, a will is often ineffective to transfer nonprobate property, and is thus irrelevant to how it passes at death. Most nonprobate wealth transfers are, by statute, exempt from the law of wills. In 1969, the Uniform Probate Code declared any transfer-on-death or pay-on-death designation in an insurance policy, employment contract, bond, mortgage, promissory note, deposit agreement, pension plan, trust agreement, conveyance or “any other written instrument” to be “nontestamentary”, and thus exempted from the law of wills.[25] Nearly every state has followed suit.[26] The current Uniform Probate Code contains not only a modern version of that 1969 provision,[27] but also a series of provisions whereby securities can be registered in transfer-on-death form.[28] Today, nearly every state allows transfer-on-death security registrations, and most banks, brokerage houses, mutual funds and other financial intermediaries now allow their account holders to make pay-on-death and transfer-on-death designations.[29] Policy and account holders can leave these legally binding instructions using “beneficiary designation forms”, which can often be submitted or fully completed online.[30]

For many Americans, nonprobate property comprises a significant fraction—often a substantial majority—of their wealth.[31] This means that, today, much American property succession already occurs without signing a will or any other tangible writing. Given that the law already permits, and indeed facilitates, the nonprobate system in which electronic documents and signatures are legally recognized, we believe it is a very small step toward the legal recognition of electronic wills.

The Importance and Benefits of Wills

Despite the prevalence of nonprobate property, many people could still benefit from a will. This is partly because most nonprobate transfers are “asset specific”—they only transfer the property in a given nonprobate vehicle (such as an insurance policy or pension account).[32] Unless a properly advised individual makes a comprehensive plan to place all of his estate in a nonprobate vehicle, and diligently places all of his future wealth into such a vehicle, [33] he will have at least some probate property, and may wish to execute a will to govern its disposition. In our experience, most people express a sincere wish to make a will once they understand the benefits of doing so. However, statistically speaking, surprisingly few Americans actually die with a will—according to one study, as many as one-third of older Americans die without a will, [34] and survey results indicate that the use of wills is declining among people over age 55.[35]

There are several possible explanations for this phenomenon. It is likely that many people do not understand the benefits, for them and their families, of making a will. They may believe that their families will easily be able to handle everything privately. They may also believe that their estates will qualify for a simple administration procedure for small estates (thus obviating the need for a will).[36] Some may find it difficult to contemplate their own mortality. Others may be deterred by the expected financial costs of the will-making process (which can be considerable and difficult to predict) or by the commitment of time and money that is necessary to select a professional advisor, receive advice, discuss options and complete the process. Many people may not know where to start.

Whatever the cause, we believe that society as a whole would be better off if more people engaged in thoughtful end-of-life planning, including will-making. It is our further belief that more people would engage in such planning, and with much greater convenience, if they had the option of creating an electronic will. Individuals and society could realize these benefits in both tangible and intangible ways: Those who die with a will get to exercise choice about the disposition of their property (and to some extent, the care of their children) at death. By contrast, intestacy laws cannot track the wishes of every decedent; at best, they reflect what lawmakers guess to be the wishes of the typical intestate decedent.[37] In consequence, intestacy statutes might direct a decedent’s property to distant relatives that he hardly knows,[38] or to relatives that the testator may have preferred to exclude. In addition, people who die with wills can spare their families from fighting amongst each other over the decedent’s true wishes, thus saving a great deal of time, anxiety and expense.

Given these benefits of wills, we believe there is a strong argument that the law should make it easier for people to execute valid wills. We also believe that the law can leverage existing technology to accomplish this goal. Before discussing how, it is necessary to understand the current and historical legal requirements for making a valid will.

A BRIEF HISTORY AND EXPLANATION OF THE WILL FORMALITIES

The will formalities grew out of the Anglo‑American legal tradition, and were historically intended to serve four main functions. In Part III.A below, we describe the history and development of the formalities, and in Part III.B, we outline the four main policies they are intended to advance.

Historical Development of the Will Formalities

The will formalities as we know them developed over several centuries in England. As the feudal system gave way to a regime favoring freedom of disposition, Parliament enacted a series of statues that validated deathtime transfers of property by will, subject to a variety of safeguards. In 1540, the English Parliament passed the Statute of Wills, which gave landowners some freedom to choose how to give away their land at death, and permitted the use of a written will to do so.[39] However, the Statute of Wills did not specify that a written will had to be signed, witnessed or bear any other marks of validity.[40] In addition, the statute continued to allow oral wills to pass personal property at death.[41]

Over a century later, in 1677, the enactment of the Statute of Frauds tightened the requirements for making a will.[42] To give away land, a will had to be (1) in writing, (2) signed by the testator and (3) signed by three witnesses (i.e., “attested”).[43] A different set of formalities applied to wills that gave away personal property.[44] However, in either case, the will was invalid if it did not have all of the three necessary formalities.[45]

The Wills Act of 1837 enacted slightly different, and in some ways more stringent, formalities for making a valid will. These formalities applied equally to wills passing land and to those passing personal property. Under the 1837 Wills Act, as under the 1677 Statute of Frauds, every will had to be in writing and signed by the testator and witnesses.[46] However, unlike the 1677 Statute of Frauds, the 1837 Wills Act required that the testator and the witnesses (i) sign at the end of the will and (ii) be in each other’s presence at the time they signed the will. And, while the 1677 Statute of Frauds required three witnesses, the 1837 Wills Act required only two.[47]

In America, the core formalities of a writing, signature and attestation are drawn from these English laws, but states have based their specific statutes on various elements of the different English laws—some on the 1677 Statute of Frauds and others on the 1837 Wills Act. [48] In addition, some states have imposed requirements of their own. For example, some states require the testator to “publish” his will, meaning to declare to the witnesses that the writing is his last will and testament.[49]

In addition to the execution formalities, nearly every American state allows a testator to use a formal tool called a “self-proving affidavit”.[50] This affidavit, which is signed before a notary or other court officer by the witnesses to the will (and in many states, the testator), provides sworn testimony of due execution. Many states provide a blank or sample version of this affidavit in their statutes.[51] When it comes time to probate a will, courts will accept a self-proving affidavit as if the witnesses had sworn to its contents in court.[52] This allows the court to dispense with calling witnesses, some of whom may be unavailable or even dead, before accepting a will’s validity. A will with a self-proving affidavit attached is considered “self-proved” and is entitled to a presumption of validity.

It is important to note that several prominent commentators,[53] the most recent revision of the Uniform Probate Code [54] and several American states favor a more flexible approach. Accordingly, many states have adopted “salvage doctrines” whereby a will can be admitted to probate despite noncompliance with the traditional formalities. These doctrines fall into two basic groups: Under the “harmless error rule”, a will may be admitted to probate despite a “harmless error” in its execution, provided that the proponent of the will “establishes by clear and convincing evidence that the decedent adopted the document as his or her will”.[55] This gives courts the power to excuse noncompliance with the formalities, provided that the testator had the required intent. Under the doctrine of “substantial compliance”, a court has the discretion to consider an improperly executed will to be in compliance with the formalities themselves, provided it was formally “close enough” to compliance.[56] Both of these salvage doctrines can allow a formally noncompliant will to probate[57] and, in some cases, could result in the probate of what could be considered an electronic will.[58]

However, these salvage doctrines are not substitutes for the will formalities. Rather, they are backup failsafes, applied on a case-by-case basis, to salvage a faulty execution on the basis of abundant evidence of authenticity. Thus, in the absence of formalities designed for electronic wills, no particular testator can leave a purported electronic will with full confidence that it will be admitted to probate. By contrast, the formalities provide a “safe harbor” that offers greater assurance that a given document will be treated as a valid will. Furthermore, the salvage doctrines are not applicable everywhere. To the contrary, in the many states that purport to follow the rule of strict compliance with the will formalities, any mistake or omission (no matter how small or innocent) could invalidate a purported will, regardless of any evidence about the testator’s intent.[59]

The Policies Advanced by the Will Formalities

As discussed in Part II above, American law affords each person the right to dispose of his property in any manner he chooses.[60] The will formalities, rather than being ends in themselves, are the means by which the legal system discerns the authenticity of a person’s purported intentions for the disposition of his property at death.[61] The extensive scholarly literature on this subject suggests that the will formalities perform four overlapping functions:

The Evidentiary Function. To implement a person’s wishes for his property, a court needs to know what those wishes are. By requiring a writing that records these wishes, the law ensures there is objective, reasonably permanent evidence of the testator’s wishes. Both experience and scientific evidence have shown that hearsay and eyewitness testimony can be unreliable, even if offered in good faith.[62] The legal system requires a relatively permanent record of the testator’s wishes, so that courts need not rely solely on other—potentially less reliable—sources of evidence. Furthermore, the testator’s signature evidences his identity, and his intent both to execute a will and for that particular signed record to serve as his will. Finally, attestation can contribute to the evidentiary value of a will because the witnesses can observe the circumstances of the will execution and possibly spot signs of incapacity, fraud or duress (which would invalidate the purported will).

The Cautionary Function. The law seeks to implement a person’s true and final wishes. The law does not (and should not) give binding effect to casual offhand statements, draft writings or tentative meditations about the future. By requiring a writing (the permanence of which can be perceived by the testator), the affixation of the testator’s signature (which has a solemnizing effect in many contexts) and the highly ceremonial requirement of witnesses, the law seeks to confirm that the intentions set forth in the will are sincere, true and final. At the same time, these requirements communicate to the testator the importance and binding effect of making a will, impressing upon the testator the solemnity of the occasion. As a result, a court is considered justified in concluding that the wishes expressed in the document “were deliberately intended to be operative” after death.[63]

The Protective Function. People who make their wills do so under widely varying circumstances. For example, some make a will in the midst of their final illness, while others may seek to do so under the influence of emotional distress. Some people fraudulently create wills that purport to be the will of someone else. Signatures, written records, and witnesses each provide valuable evidence for understanding the circumstances surrounding the execution of a will, and, accordingly, protect testators from fraud and undue influence.[64]

The Channeling Function. The formalities have led to a high level of standardization in the structure and appearance of wills. As Professor Langbein has observed, as a result of the formalities “courts are seldom left to puzzle whether the document was meant to be a will”.[65] This enhances the efficiency of court operations, but also benefits each testator because “[h]e does not have to devise for himself a mode of communicating his testamentary wishes to a court, and to worry whether it will be effective”.[66]

We believe that these functions continue to be highly relevant in the modern world, for all the reasons expressed by Professor Langbein:

“If legal policymakers were put to the choice between a regime of no Wills Act formalities, on the one hand, versus the Wills Act formalities as traditionally applied on the other hand, there would be a large consensus in favor of the status quo. The greatest blessing of the Wills Act formalities is the safe harbor that they create. Without prescribed formalities, the testator would be left to grope for his own means of persuading the probate court that his intentions were final and volitional.”[67]

Nevertheless, the question remains how the formalities can be adapted to fit a modern technological environment. We turn to this subject after a brief summary of the current role of technology in the law of property succession.

THE CURRENT ROLE OF TECHNOLOGY IN THE LAW OF PROPERTY SUCCESSION

The digital world is only just beginning to influence the law of wills, both through statutory recognition and through a nascent case law showing acceptance of electronic wills. Meanwhile, the nonprobate system, through which a vast amount of property passes at death, has better kept pace with technological progress.

Technology and the Law of Wills

In 2000, the state of Nevada enacted a law that allows an individual to make an “electronic will”. Under this statute, a Nevada electronic will must be created and stored in an “electronic record”, with one unique and unalterable “authoritative copy”.[68] It must include the date and the testator’s electronic signature[69] and at least one “authentication characteristic” such as a fingerprint, retinal scan, voice recognition, facial recognition, digitized signature, or “other authentication using a unique characteristic of the person”.[70] This Nevada statute attempts to provide an analogy to the will formalities by means of the “authentication characteristic”, but dispenses with any requirement for witnesses or a notary—indeed, under this law, no individual other than the testator would be required to make an electronic will. This law is not yet widely used, and may have some notable shortcomings. Nevertheless, the Nevada law is a significant step toward incorporating technology into probate law.

In other American states, courts have signaled an openness to wills incorporating technology in their creation, storage or execution. In 2013, an Ohio court admitted to probate a will drafted and signed electronically on a tablet.[71] In that case, Javier Castro declined treatment while hospitalized, despite knowing that this would result in his death. While still in the hospital, Javier and his brothers discussed his making a will. Since they did not have a pen or paper, one brother took dictation from Javier and wrote Javier’s will on an electronic tablet, using a stylus. Javier later signed the will—on the tablet, using the stylus—in the presence of his two brothers. Later, he acknowledged the will to a third witness, his nephew. In its decision admitting the will, the court noted that “[the law] requires only that the will be in ‘writing’. It does not require that the writing be on any particular medium”.[72] Thus, the court held that the tablet satisfied the legal requirement of a “writing”, and that Javier’s electronic signature satisfied the legal requirement that the will be “signed” (the electronic signatures of the witnesses were also accepted).[73]

Javier Castro's Will, Written on an Electronic Tablet

Notably, the court made these findings under Ohio’s statute for the traditional will formalities. However, the court understood Ohio law[74] to require an additional formality called an “attestation clause”,[75] which was not present on Javier’s will. Thus, Javier’s will was admitted to probate under Ohio’s version of the harmless error rule. Commentators have noted that, “[g]iven the court’s findings that the tablet image was a writing, that the testator had signed it, and that three witnesses had also signed it, the tablet will was in strict compliance with the Wills Act as normally interpreted”.[76]

Other courts have also admitted electronically signed wills in satisfaction of the traditional formalities. In the case of Taylor v. Holt, a man named Steve Godfrey wrote his own one-page will on his computer. Rather than printing the will and signing a paper copy by hand, he typed his name at the end in cursive font. Then he printed the will on paper and asked his neighbors to sign the paper document by hand, as witnesses. After his death, a Tennessee appellate court held that Steve had signed his will and that his will was valid:

“In the case at hand, Deceased did make a mark that was intended to operate as his signature. Deceased made a mark by using his computer to affix his computer generated signature, and, as indicated by the affidavits of both witnesses, this was done in the presence of the witnesses. The computer generated signature made by Deceased falls into the category of ‘any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record,’ [as provided by the applicable definition of a ‘signature’], and, if made in the presence of two attesting witnesses, as it was in this case, is sufficient to constitute proper execution of a will. Further, we note that Deceased simply used a computer rather than an ink pen as the tool to make his signature, and, therefore, complied with [the signature requirement] by signing the will himself.”[77]

While these two courts have displayed comfort with electronic wills and electronic signatures, other courts have been less welcoming. For example, in Litevich v. Probate Court, Carole Berger felt that her health was failing, so she created an account with an online document provider and went through a will drafting process on their website. She paid for a paper copy of her will with a credit card, and the provider mailed it to her. However, Carole did not immediately sign the will because she erroneously believed that it would be invalid if not notarized. Carole eventually died without signing the document.

Carole’s beneficiaries under the web-drafted document alleged several facts intended to legitimize that document, including the fact that the provider required Carole to “confirm each of the documents she had created”, which confirmation process they argued was “tantamount to a signature”.[78] In light of this and other evidence supposedly indicating Carole’s intent to make a will, the beneficiaries under the web-drafted document urged the court to adopt a harmless error rule as followed in other states.[79] The court declined to adopt the harmless error rule in the absence of legislative decree,[80] and furthermore noted that the rule would likely not have applied in this case due to the severity of the execution defects affecting the web-drafted document—notably, it rejected the proponents’ arguments that the website confirmation process amounted to an electronic signature. [81] Thus, the court denied probate because the document was neither signed nor witnessed as required by Connecticut law.[82] This case suggests that American courts are committed to the will formalities—and compliance with the formalities is still required for a valid will—even though courts may be increasingly inclined to accept electronic documents and signatures in satisfaction of those formalities.

In other nations, experience shows that more cases like Taylor, and, more importantly, cases like Castro, are coming. Various international jurisdictions have shown willingness to accept electronic media as wills, particularly under their salvage doctrines for nonconforming wills. As early as 1996, a Canadian court accepted, as an individual’s last will and testament, a word processing document saved on a computer disk. [83] In 2002, a South African court admitted to probate an electronic document saved to the hard drive of the testator’s employer.[84] In that case, the deceased, Malcolm MacDonald, was a senior IT specialist at IBM Global, where he worked on an office computer that was only used by him and required a password that was changed monthly and sealed in an envelope under conditions of heightened secrecy. The deceased committed suicide and left a handwritten note that read “I, Malcolm Scott MacDonald, ID 5609065240106, do hereby declare that my last will and testament can be found on my PC at IBM under director C:\WINDOWS\MYSTUFF\MYWILL\PERSONAL.”[85] Upon hearing of MacDonald’s suicide and learning about this note, MacDonald’s employer obtained his password, printed the will and deleted the electronic file of the will from MacDonald’s computer. The court admitted the will to probate under its “rescue provision” (a salvage doctrine resembling the harmless error rule),[86] finding that MacDonald had drafted the document and intended it to be his will.[87]

In 2010, another South African court accepted a draft will that was not even signed, but had been emailed to a beneficiary under the will.[88] In that case, John Henry Munnik van Schalkwyk and Hendrick van der Merwe were close friends who planned to leave their entire estates to each other. Shortly before dying, van Schalkwyk emailed van der Merwe an unsigned draft of his will, and van der Merwe had an attorney draft a similar will for himself, which van der Merwe then signed. However, van Schalkwyk died unexpectedly before he could execute his will. The court admitted van Schalkwyk’s emailed will to probate under its salvage doctrine, a version of the harmless error rule, having determined that it was clearly intended to be his will, and that it had an “aura of authenticity” because it still existed on van Schalkwyk’s computer in the same form as in the email to van der Merwe.[89]

In addition, several Australian courts have admitted electronic documents as wills under Australian versions of the harmless error rule.[90] In 2013, a Queensland court admitted the will of Karter Yu, which he had typed on an iPhone.[91] He had created this document shortly before committing suicide, along with “a series of documents . . . most of them final farewells”.[92] The Queensland harmless error rule allows the probate of a “document” intended to be the will of the deceased, provided that such document “purports to state the testamentary intentions of the deceased person”.[93] Yu’s iPhone document began with the text “This is the last Will and Testament [of Karter Yu]”, disposed of Yu’s property, named an executor and ended with Yu’s name typed “at the end of the document in a place where on a paper document a signature would appear”.[94] The court admitted the iPhone file as a will, finding that it satisfied the requirement of a “document” under the applicable harmless error rule,[95] purported to state Yu’s testamentary intentions,[96] and was intended to serve as Yu’s will.[97] Also in 2013, an Australian court accepted, under the same doctrine, a video on a DVD that was labeled “my will”.[98] The court reasoned that the DVD was a “document” as required by the salvage doctrine, and that it was clearly intended as a will.[99] Nevertheless, Australian courts have reached “conflicting decisions” regarding the probate of Microsoft Word files purportedly intended as the decedent’s will, admitting some and denying probate to others under somewhat similar circumstances.[100]

Given the current state of the law, a comprehensive statutory framework for electronic wills will provide clarity while reducing the burden on the courts. Despite a nascent acceptance of electronic documents, there may be a reluctance to admit instruments to probate which do not satisfy the traditional formalities. In the Australian case law, conflicting applications of the harmless error doctrine suggest that the case-by-case application of salvage doctrines can result in different outcomes for similar situations, creating unpredictable rules for electronic wills. Without the “safe harbor” provided by the formalities, courts will be asked to discern from a fragmented evidentiary record whether an individual intended a given electronic document to be his will. Updating the law of wills for the modern age should not require courts to engage in this inevitably subjective process.

Technology in the Nonprobate System

The nonprobate system, unlike the law of wills, is thoroughly permeated by technology. The so called “free-market competitors of the state-operated [probate] system”[101] are not subject to the will formalities. Instead, nonprobate arrangements are governed by other bodies of law, specific to the type of transfer at issue. For example, revocable inter vivos trusts are subject to principles of trust and fiduciary law, pension and other employee benefit plans are governed in large part by the Employee Retirement Income Security Act of 1974 (“ERISA”), and the ownership of real property is subject to state laws permitting joint ownership and automatic succession in the form of transfer-on-death deeds. In addition, the principles of contract law bear on agreements (such as beneficiary designations) between financial institutions and individual customers and policy holders.

As discussed above, the Uniform Probate Code and most state laws have rendered these arrangements “nontestamentary” (i.e., outside the law of wills).[102] As such, these agreements are subject to generally applicable laws concerning the commercial validity of electronic documents and signatures (such as E-SIGN and, at the state level, UETA).[103] These developments reflect a strong legislative policy in favor of digital deathtime transfer. In fact, the use of electronic designations for deathtime transfer is not only legal, but also a widely accepted practice. Respected financial institutions like Vanguard[104] and Fidelity[105] allow the distribution of large nonprobate accounts to be governed by beneficiary designations that can be made by clicking a button or typing a name. Others, like John Hancock, allow policy holders to complete beneficiary designation forms online, e-Sign them, and “e-Submit” them. [106] The widespread use of digital deathtime transfers demonstrates their reliability—profit-seeking institutions would not use electronic methods if such methods were unreliable or resulted in constant litigation concerning their security and validity.

Consequently, and with the sanction of most states and the Uniform Law Commission, most American property succession is already allowed to occur outside the probate system, using modern internet-based technology. In this way, the nonprobate system is a bridge between the technology-driven law of modern commerce and the ancient Wills Act formalities. Given that most, if not all, of a person’s property can be passed in the nonprobate system through electronic means, there is no reason why a person should not be able to electronically pass probate property.

WILL FORMALITIES FOR THE MODERN WORLD

As indicated in Part IV above, some courts have shown greater acceptance of electronic wills and electronic signatures on wills. However, these cases also indicate a general judicial reluctance to replace the traditional will formalities with ad hoc searches for testamentary intent. Thus, legislative action is critical to providing courts with a template for mapping the traditional will formalities onto an electronic format, rather than relying on inconsistent case-by-case adjudication.

Therefore, we call in this paper for legislation to update the will formalities in a way that recognizes modern technological capabilities while respecting the functions of the will formalities. Recall, as outlined above, that the traditional will formalities require three things: (1) a writing, (2) signature by the testator, and (3) attestation by witnesses or, as allowed by the Uniform Probate Code, a notary public. These formalities are said to serve four functions: (i) to evidence the testator’s intentions (evidentiary), (ii) to confirm such intentions were true and final (cautionary), (iii) to protect testators from fraud, forgery and undue influence (protective), and (iv) to standardize the mode of expressing final wishes regarding the distribution of property at death (channeling). As discussed below, we believe that, in practice, these functions could be served by electronic versions of the traditional will formalities.

The Requirement of a Writing

The Restatement (Third) of Property for Wills and Other Donative Transfers observes that, in the case of a will, “[t]he requirement of a writing does not require that the will be written on sheets of paper”.[107] Rather, as under the Uniform Probate Code, a writing is merely a “reasonably permanent record”. [108] In the context of nonprobate transfers, laws like E-SIGN and UETA specifically permit beneficiary designations to be made and signed electronically. It is consistent with these principles to allow electronic media to satisfy the writing requirement for a will, particularly when understood as a “reasonably permanent record”. Indeed, the Castro case has already effectively recognized this,[109] as in that case, the court held that Javier Castro’s will, which was written and signed on an electronic tablet, satisfied the traditional formal requirement of a writing.[110]

In other areas of law and commerce, electronic documents bearing electronic signatures are already well accepted as legally effective writings. Under E-SIGN, the government gives binding legal recognition to electronic signatures and to many types of electronic documents. Many government agencies accept electronic records (with some accepting only electronic documents). To recite three examples:

  • Most federal courts require litigation documents to be submitted electronically, using an interface known as “PACER”.
  • The U.S. Securities and Exchange Commission requires companies to submit their financial and other information electronically, using a system known as “EDGAR”.
  • The U.S. Internal Revenue Service, and most state tax authorities, permit or require income tax returns to be “e-filed”.

Similarly, the law governing business transactions has already accepted the reality that electronic records are essentially equivalent to paper records. For example, Section 7© of the Uniform Electronic Transactions Act (“UETA”) provides that “[i]f a law requires a record to be in writing, an electronic record satisfies the law.”[111] Thus, nearly all American business, implicating trillions of dollars annually, can be conducted electronically with the full sanction of the law. Even more importantly (and as noted above), the nontestamentary nature of the nonprobate system means that much American property can already be transferred at death by means of electronic documents and signatures.

However, bowing to the tradition of will formalities, UETA specifically does not apply to wills.[112] As a result, while electronic documents are effective for business and nonprobate purposes, electronic wills have not yet taken hold outside small pockets of recognition, such as Castro. We believe the acceptance of electronic testamentary writings would bring the law of wills into greater harmony with the nonprobate system and the growing legal (and practical) acceptance of electronic media.

Furthermore, we believe electronic wills can serve the evidentiary function just as well as, if not better than, paper documents. The statutory formality of a “writing” means a “reasonably permanent record”.[113] In the case of a paper will, there is a single original document which represents a relatively permanent record of the testator’s intent. If the law were to accept electronic wills alongside paper wills, it would be important for judges to be able to identify the “original” electronic record of the testator’s will. This can be accomplished using current technology, in one of two ways: (1) by a statutory framework providing a safe harbor for the creation and storage of electronic documents by a reliable custodian, or (2) using document security technology to track access and alterations to electronic wills bearing electronic signatures.

One straightforward way to approach electronic formalities is a set of safe harbor provisions that, if followed, would create a presumption of the validity of an electronic will that was created and stored under the control of a custodian that meets certain qualifications for document security and agrees to handle electronic wills in a way consistent with the rights and wishes of testators. Thus, judges could be as confident in a will’s authenticity as they are in the reliable technological practices of an entity or institution formed to host electronic wills and associated data. However, the control of a custodian is not the only way to prove the integrity of an electronic record. Existing technologies such as metadata can provide evidence about the creation, storage, access or alteration of electronic records, which can in turn be used to prove the authenticity of electronic wills in court. “Metadata” is “data about data”, or “structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource”.[114] Many users are already familiar with simple metadata, such as the information in the “File Info” or “Document Properties” menus of various software programs.[115] Often, metadata is embedded directly into a digital object, such as an HTML document or the header of a digital image.[116] Much basic metadata is created by an automated process whenever a document is created, altered or accessed—thus, the creation of such data does not require the active control or participation of a custodian.[117]

Probate judges can use metadata evidence to evaluate the authenticity and credibility of electronic wills. A type of metadata called “preservation metadata” includes the information needed to manage, archive and preserve a resource, such as when it was created, whether it has been altered and who can access it.[118] Preservation metadata uses “special elements to track the lineage of a digital object (where it came from and how it has changed over time)”.[119] In this way, metadata can address concerns about the corruption or alteration of wills stored electronically in domestic settings, such as on a testator’s computer.

Metadata is present in virtually every software platform, including Microsoft Word[120] and Adobe.[121] In addition, newer and more sophisticated metadata technologies are continuously being developed to protect and authenticate files. For example, “hashing” technology uses an algorithm to create a unique ID number for each discrete computer file. If the file is altered or copied, the algorithm automatically produces a new “hash value” to distinguish the two electronic files. As practitioner Ralph C. Losey explains:

“The hash algorithm analyzes a computer file and calculates a unique identifying number for it, called a hash value. No two electronic records have the same hash value. For that reason, it is called the “digital fingerprint” of electronic documents. Here is an example of a hash value: 162B6274FFEE2E5BD96403E772125A35. . . [T]he hash value of a file will automatically and necessarily change if the file is altered. Thus, hash can both provide objective order and authenticate an unlimited number of electronic documents.”[122]

Admitting a will to probate is, at its core, an evidentiary process. Today, courts examine paper originals for markers of authenticity (such as ink signatures) and evaluate any suspicious circumstances concerning their creation and storage. Similarly, courts can evaluate the authenticity and credibility of electronic wills by examining their metadata. Based on hash values or other metadata, judges will be able to decide whether an electronic will stored outside a custodian’s control—for example, a will stored on the testator’s computer—is an authentic representation of the testator’s will.[123]

An electronic will fulfills the requirement of a writing—particularly understood as a “reasonably permanent record”—if it is either (a) under the control of a custodian with proper technological validation capabilities, or (b) unaltered and uncorrupted as evidenced by its metadata. Such electronic wills can serve the evidentiary function by providing a record of the testator’s intent that can be reliably preserved and authenticated by a probate judge through a standard evidentiary investigation. In fact, an electronic record may well provide even better evidence than a paper record—while fraudsters and forgers of paper documents are limited only by ingenuity, it requires greater resources and sophistication to alter electronic records without being detected, particularly if solid metadata evidence is available or those documents are stored by a reliable custodian. Thus, given that electronic wills may serve the evidentiary function even better than paper wills, one can envision a day when electronic wills may be considered the standard for security and integrity.

The Signature Requirement

Under UETA, an “electronic signature” is defined as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record”—this can include a digital image of a handwritten signature. [124] UETA goes on to provide, “If a law requires a signature, an electronic signature satisfies the law.”[125] In the parallel system of nonprobate wealth transfers, individuals are legally bound by beneficiary designations made online by clicking a button, typing a name or sending a PDF.[126] Modern electronic commerce depends on the enforcement of these and other electronic transactions.

The function of a signature on a will is the same as the function of a signature on a contract or a beneficiary designation form—it cautions the signatories that the document will have a legally binding effect, and it provides courts with evidence of the signatories’ intentions. Electronic signatures can serve the cautionary function just as well as ink signatures. This is particularly true in the context of a will ceremony, which by its nature already underscores the solemnity of executing a will. That electronic signatures can play a similar role in formal and ceremonial signings is underscored by a Virginia law permitting documents to be electronically notarized. Under this law, notaries are authorized not only to notarize paper documents signed in their physical presence, but also to notarize electronic documents signed remotely, via webcam.[127] The webcam notarization ceremony functions much the same as it would in person,[128] indicating that, at least as far as the Virginia legislature was concerned, most of the formal attributes of an in-person ceremony can be translated into a remote electronic one.

Electronic signatures can also serve to bind a will’s signatory and evince his intent—indeed, this is the function of electronic signatures in all modern electronic commerce. It is difficult to see why, if an electronic signature can bind a multi-national corporation to a multi-billion dollar contract, commit a person to a significant purchase or pass a person’s accounts at death (and in all of these contexts, evince the signatories’ intent), an electronic signature should not be good evidence of a testator’s intent to make a will. Some courts have already recognized the essential equivalency of electronic and ink signatures on wills,[129] but it is possible that other courts would not. We believe that widespread formal recognition of electronic signatures on wills would permit courts to develop consistent treatment of electronic and electronically signed wills.

The Requirement of Witnesses or a Notary

The attestation requirement serves three functions: (1) to signal to the testator the importance of the act of signing the document, (2) to provide evidence, apart from the document itself, that the testator was competent and intended to make a will, and (3) to protect the testator from coercion, fraud and undue influence. While the Uniform Probate Code has rightly recognized that the same functions can be served by signing in front of one notary instead of two ordinary witnesses (and we believe that this approach should be widely adopted), most states still require at least two witnesses.

We believe the functions served by witnesses (or a notary) are important to the integrity of a will. At the present time, we are not convinced that it would be advisable to dispense with the witnessing or notarization requirement. Nevertheless, we believe that the law should affirmatively recognize that attestation can be performed effectively (and serve all the relevant functions of the will formalities) online, via webcam.

Remote witnessing can serve the cautionary function just as well as in-person attestation—despite the increased convenience of webcams, the testator would necessarily be aware of being connected to other individuals for ceremonial purposes. Furthermore, since remote witnesses can see the testator on a video feed, a remote ceremony could straightforwardly serve the evidentiary function. Finally, it is possible for remote witnessing to serve the protective function if the witnesses (or notary) diligently obtain proof of the testator’s identity (to fight fraud) and observe him for signs of incapacity or duress. Just as in a live ceremony, a remote witness or notary can request the testator’s ID—in fact, the use of webcams provides an opportunity to photograph the testator with his ID, creating a record of the person who presented the testator’s ID and signed a purported will. Remote witnesses can also spot markers of incapacity or duress (such as slurred speech, confusion, incoherent language, fearful attitude or unusual body language). [130]

In addition, some states impose a further requirement that a will’s witnesses sign in the “presence” of the testator or each other.[131] Given the ability for witnesses to meaningfully serve their functions over webcam, we believe that the law’s concept of what it means to be “present” with another person should be expanded in light of technological advances. Centuries ago (before the advent of instantaneous digital communication), courts considered a testator and witness to be in each other’s presence if they were in each other’s “line of vision”, i.e., they could see (or could have seen) each other at the time of signing.[132] More recently, several states and the third Restatement of Property[133] have adopted the “conscious presence test” whereby a witness is in the testator’s presence if “the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing.”[134] This test can be considered one of “mental apprehension.”[135]

Today, people can communicate instantaneously with others across the world. Through videoconference technology, or commercially available services such as Skype (offered by Microsoft), FaceTime (offered by Apple) and Duo (offered by Google), people can see and hear each other simultaneously at great distances. Even the intimate work of medical consultation and diagnosis can now be done over webcam—a service called “Teladoc” allows patients to request webcam or telephone consultations with physicians, on the basis of which doctors can issue diagnoses, prescriptions and medical advice.[136] Given the wide use of such technology for important and sensitive communication, remote “presence” over webcam is a natural continuation, or even a straightforward application, of the conscious presence test in the digital age.

Indeed, we believe that, as long as witnesses can see and hear each other and the testator, they are able to meaningfully witness a signature or acknowledgement, and, for modern purposes, to be present with one another. Thus, webcam witnesses can fully discharge their cautionary, evidentiary and protective functions (and fulfill any requirement of “presence”) remotely. In fact, remote witnessing might even improve upon current practices—if an electronic execution ceremony were recorded, the evidentiary value of witnessing would increase, since current practices depend on potentially unreliable eyewitness testimony.[137] In addition, electronic execution could be used to sign self-proving affidavits, which would streamline the process of self-proving wills and eliminate the need for witness testimony in the first place.

We note that this reasoning is not unique, as the Commonwealth of Virginia has adopted an electronic notary law[138] based on similar concepts. This law offers an instructive model for how remote witnessing of wills could work in practice. Under current Virginia law, notaries can notarize electronic documents remotely, via webcam.[139] The webcam notarization ceremony is much the same as it would be in person,[140] as the notary is required to authenticate a signer’s identity[141] and place a notarial seal on the electronic document.[142] The notary is then required to keep a video of each notarization ceremony for five years.[143]

Virginia’s electronic notary laws uphold the same policy goals as prior notarial laws, and bear many practical similarities to traditional notarial practice. At the same time, they adapt traditional practices and further policy goals through electronic means suited to the modern world.[144] In a similar way, we believe that the will formalities can be modernized in a way that advances traditional policy and translates existing practices into a modern technological format.

CONCLUSION

We believe that the foregoing considerations, taken together, make a powerful case for legal reforms permitting electronic wills, electronic signatures and remote witnessing or notarization. In our view, such reforms would conform to an existing trend, within and without the probate system, of recognizing electronic documents and signatures as compliant with traditional formal requirements. These reforms would adapt the traditional functions of the will formalities and harmonize the law of wills with other areas of the law. These reforms may encourage the increased use of wills (and with it, the use of thoughtful estate planning), since technology can be used to make will execution cheaper, quicker and more convenient. Thus, as a matter of public policy, we urge legislators to adopt such reforms.

We note that these reforms would be significantly more protective of testators than the procedures currently given legal recognition in the nonprobate system, where many Americans hold most of their wealth. For many years, Americans have disposed of their nonprobate wealth at death by uploading PDF’s, clicking buttons or typing names into a webpage. Electronic will formalities, with their requirements of webcam witnessing and attestation, are a similarly convenient—but more protective—method of effecting freedom of disposition. Indeed, we would expect that anyone comfortable with the involvement of technology in the nonprobate system would consider these electronic formalities to be more than sufficient assurance that the functions of the will formalities are carried out in the case of each electronic will.

In addition to the policy basis for reform, we also expect such reforms to have both tangible and intangible benefits for society as a whole. For example, it is reasonable to predict that such reforms can:

  • Increase access to quick, inexpensive and convenient methods for executing valid wills. This could encourage more testators to make their wills and engage in other end-of-life planning activities, allowing people to exercise greater choice about property succession.
  • Make the benefits of the legal system more accessible to vulnerable populations and to those who have historically been underserved by the legal system. This benefit would be particularly applicable to elderly or ill people who, despite being of sound mind, find traditional estate planning (including a traditional will execution ceremony) expensive or burdensome.
  • Provide decedents’ families with more certainty in property succession, speedier distributions of property and fewer estate disputes.
  • Give clear guidance for taxpayer-funded courts faced with electronic wills, thus avoiding estate disputes, saving time and conserving tax money.
  • Allow lawyers and other professionals to expand the volume and geographic scope of their practices.[145]

Given the potential social, political, economic and policy benefits of legislative reform (as well as its potential for future integration with the nonprobate system), we believe such reform would be advisable and may even be inevitable. As of this writing, the Uniform Law Commission has decided to draft a uniform act concerning electronic wills,[146] and legislation has been introduced in several states to authorize the use of electronic wills. We would not be surprised if, in the near future, a meaningful number of states choose to enact laws to facilitate the use of technology in the will execution process. By enacting such laws, legislators can leverage existing technology to enable people to exercise the motivating principle of the law of wills: the freedom of disposition.

Disclaimer

This white paper relates to general information only and does not constitute legal advice. The presentation of information in this white paper or the receipt of such information does not create an attorney-client relationship between the recipient and the Legal Advisory Board, any of its members, Bequest, Inc. or any authors or contributors to this white paper, or between Cravath, Swaine & Moore LLP and any of the foregoing.

The information in this white paper is presented with reasonable care and attention. However, information in this white paper may not constitute the most current or complete information with respect to legal topics or development. Accordingly, a recipient of information from this white paper should not take or refrain from taking any action on the basis of any information contained herein. None of the Legal Advisory Board, its members, Bequest, Inc., Cravath, Swaine & Moore LLP or any authors or contributors to this white paper (a) accept any liability for any action a recipient may take or refrain from taking in reliance on this white paper, or (b) make any undertaking to update this white paper or advise readers of any legal developments. However, this white paper may be changed, improved or updated without notice.

Any opinions, standards or recommendations contained in this white paper represent only the views of those to whom it is attributed.


  1. See infra Part A Section V (discussing technologies that have improved the quality of service by businesses, as well as governmental uses of technology in service of citizens). ↩︎

  2. 15 U.S.C.A. §§ 7001-7006; Unif. Elect. Transactions Act § 7 (1999); see also Steven Domanowski, E‑SIGN: Paperless Transactions in the New Millennium, 51 DePaul L. Rev. 619, 642-43 (2001). ↩︎

  3. Significantly, E-SIGN and the UETA are specifically inapplicable to wills. 15 U.S.C.A. § 7003(a)(1); Unif. Elect. Transactions Act § 3(b)(1). ↩︎

  4. A “writing” means a reasonably permanent record. See Unif. Probate Code § 2-502, cmt. a (“Subsection (a)(1) requires the will to be in writing. Any reasonably permanent record is sufficient.”); Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. i (“The requirement of a writing does not require that the will be written on sheets of paper, but it does require a medium that allows the markings to be detected.”). ↩︎

  5. Various states have developed additional formalities beyond these core requirements. For example, some statutes have an additional “subscription” or “sign-at-the-end” requirement, adopted from a particular English law, whereby the testator’s signature must appear “at the foot or end” of the will. Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. l. In these states, any language appearing after the testator’s signature will not be given effect (unless under the “harmless error doctrine”, discussed infra in Part A Section III). Id. By way of another example, some states also contain a “publication” requirement, whereby the testator must signify to the witnesses that the writing is the testator’s will. Id., cmt h. While the ideal “publication” is the testator’s verbal declaration that the writing is his will, “any signification”, including the testator’s silent acquiescence to another’s statement or question, can satisfy the requirement. Id.

    In addition, many states allow “holographic” (or handwritten) wills that are not witnessed at all, provided that the will is written (and in some cases dated) in the testator’s handwriting. See Restatement (Third) of Property, Wills and Other Donative Transfers § 3.2 cmt. a-b. The authorities that allow holographic wills vary with respect to which portions of the will must be written in the testator’s handwriting. Id., cmt. b. ↩︎

  6. See John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 Mich. L. Rev. 722, 748-49 (1988). ↩︎

  7. See infra, Part B Section IV. ↩︎

  8. See infra, Part B Section IV. ↩︎

  9. See John H. Langbein, Substantial Compliance With the Wills Act, 88 Harv. L. Rev. 489, 492 (1975) (internal citations and quotations omitted). ↩︎

  10. Restatement (Third) of Property, Wills and Other Donative Transfers § 10.1 cmt. a. ↩︎

  11. Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 St. Louis U. L.J. 643, 643-44 (Spring 2014). Note, however, that there are “some limitations on freedom of disposition”, including the protection of the decedent’s creditors and survivors and the “Rule Against Perpetuities”, which prevents the testator from exercising dead hand control over property for an unreasonable number of years. Id. at 644. ↩︎

  12. See Hodel v. Irving, 481 U.S. 704, 716 (1987). ↩︎

  13. Restatement (Third) of Property, Wills and Other Donative Transfers § 10.1 cmt. a (emphasis added). ↩︎

  14. Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 St. Louis U. L.J. 643, 643-44 (Spring 2014) (internal quotations, citations and emphasis omitted). ↩︎

  15. See, e.g., NY Est. Powers & Trusts Law § 3-1.1–3-3.10; M.G.L.A. ch. 190B, §§ 2-501–2-610; Fla. Stat. Ann. §§ 732.501-732.615 (setting out, in general, the rules for who can make a will and how to do so, together with the rules limiting such power and the construction of testamentary instruments). ↩︎

  16. See 4-15 Murphy’s Will Clauses: Annotations and Forms with Tax Effects § 15.02 (2015). ↩︎

  17. See generally Alyssa A. DiRusso and S. Kristen Peters, Parental Testamentary Appointments Of Guardians For Children, 25 Quinn. Prob. L. J. 369 (2012) (noting, however, that some state courts retain the power to override testamentary appointments of a guardian in the best interests of the child). ↩︎

  18. See, e.g., NY Est. Powers & Trusts Law §§ 4-1.1–4-1.6; see also Adam J. Hirsch, Default Rules in Inheritance Law: A Problem in Search of its Context, 73 Fordham L. Rev. 1031, 1032-33 (2004) (“[t]he intestacy statute, [sets] out rules for the division of decedents’ estates that take effect in the absence of, and yield to, an executed writing. The intestacy scheme represents the will which the law makes, if and only if the decedent fails to make her own.”) (internal citations and quotations omitted). ↩︎

  19. See, e.g., Fla. Stat. Ann. §§ 733.301–733.3101. ↩︎

  20. See generally Alyssa A. DiRusso and S. Kristen Peters, Parental Testamentary Appointments Of Guardians For Children, 25 Quinn. Prob. L.J. 369 (2012). ↩︎

  21. See Russell N. James III, The New Statistics of Estate Planning: Lifetime and Post-Mortem Wills, Trusts, and Charitable Planning, 8 Est. Plan. & Community Prop. L.J. 1, 27-28 (2015) (noting that most people pass a great deal of property through the nonprobate system, even if they use a will). ↩︎

  22. John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L.J. 1, 14 (2012). ↩︎

  23. John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L.J. 1, 10 (2012). Professor Langbein has also listed the major nonprobate institutions: “[l]ife insurance companies, pension plan operators, commercial banks, savings banks, investment companies, brokerage houses, stock transfer agents, and a variety of other financial intermediaries”. John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108 (1984). ↩︎

  24. See, e.g., Ohio Rev. Code Ann. § 5302.22; Ca. Prob. Code §§ 5600-5696. ↩︎

  25. Unif. Probate Code § 6-201 (1969). ↩︎

  26. See Jeffrey A. Schoenblum, Multistate Guide to Estate Planning, tbl. 5.01, Part 2 (2016). ↩︎

  27. See Unif. Probate Code § 6-601. ↩︎

  28. See Unif. Probate Code §§ 6-301 - 6-311 (adopted from 1989 Uniform Transfer on Death Registration Act). ↩︎

  29. Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates, 490 (9th ed. 2013). ↩︎

  30. See infra Part B Section IV. ↩︎

  31. See Russell N. James III, The New Statistics of Estate Planning: Lifetime and Post-Mortem Wills, Trusts, and Charitable Planning, 8 Est. Plan. & Community Prop. L.J. 1, 27-28 (2015) (reporting extensive survey evidence showing predominance of nonprobate transfer, and noting that even for testators who used a will, much of their property likely—or at least possibly—passed via nonprobate transfer). “The concept of estate planning, as being controlled by a single testamentary will document, appears not to fit the modern reality of post-mortem distribution.” Id. See also John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 Mich. L. Rev. 722, 748-49 (1988). ↩︎

  32. John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L.J. 1, 11 (2012) (“Apart from the revocable trust, the other main will substitutes—sometimes called mass will substitutes—are asset-specific. That is, each type is a transfer system that is limited to the particular type of asset that the particular type of financial intermediary happens to offer and to service: Insurance companies transfer insurance accounts arising under insurance policies, banks transfer bank account balances, and so forth.”). ↩︎

  33. See generally Melanie B. Leslie and Stewart E. Sterk, Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C.L. Rev. 61 (2015); Melanie B. Leslie and Stewart E. Sterk, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U. L. Rev. 165 (2014) (noting the that the fragmented nature of the nonprobate system, with its various and disparately-governed transfer vehicles, leads to coordination problems that can prevent an individual from developing a cohesive estate plan and result in unintended succession). ↩︎

  34. See Marsha A. Goetting and Peter Martin, Characteristics of Older Adults with Written Wills, 22 J. Fam. & Econ. Issues 243, 253 (2001) (reporting that only 66% of older adults, with a sample size of 521 answering by interview questionnaire, had made a will). ↩︎

  35. See Russell N. James III, The New Statistics of Estate Planning: Lifetime and Post-Mortem Wills, Trusts, and Charitable Planning, 8 Est. Plan. & Community Prop. L.J. 1, 16 (2015) (noting a “relatively substantial decline in the use of wills without [revocable] trusts, leading to a declining percentage of older adults who have either a will or a funded trust”). ↩︎

  36. Some states (and the Uniform Probate Code) contain a provision whereby estates not exceeding a specified amount can be immediately distributed to those entitled thereto—and then closed—by the personal representative. Unif. Probate Code § 3-1203. See, e.g., Fla. Stat. Ann. §§ 735.201-735.2063; N.H. Rev. Stat. § 553:33. ↩︎

  37. See Alyssa A. DiRusso, Testacy and Intestacy: The Dynamics of Wills and Demographic Status, 23 Quinnipiac Prob. L.J. 36, 56 (2009) (“A plan that suits the majority is the most drafters of intestacy statutes can hope for; statutes cannot take into account the complex variety of preferences disclosed within these empirical studies.”). ↩︎

  38. See Marsha A. Goetting and Peter Martin, Characteristics of Older Adults with Written Wills, 22 J. Fam. & Econ. Issues 243 (2001) (suggesting that, as a result of the application of intestacy rules, the property of decedents could go to distant relatives whom they may not even know). ↩︎

  39. Gerry W. Beyer and Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U.L. Rev. 865, 870 (2007). ↩︎

  40. See Statute of Wills, 1540, 32 Hen. 8, c. 1 (Eng.). ↩︎

  41. See C. Douglas Miller, Will Formality, Judicial Formalism, and Legislative Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 167, 198 (1991); Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates 148-49 (9th ed. 2013). ↩︎

  42. See Gerry W. Beyer and Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U.L. Rev. 865, 870-71 (2007); C. Douglas Miller, Will Formality, Judicial Formalism, and Legislative Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 167, 200 (1991). ↩︎

  43. An Act for Prevention of Frauds and Perjuries, 1677, 29 Car. 2, ch. 3. ↩︎

  44. Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates 148-49 (9th ed. 2013). ↩︎

  45. See C. Douglas Miller, Will Formality, Judicial Formalism, and Legislative Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 167, 200 (1991). ↩︎

  46. See Wills Act, 1837, 7 Wm. 4 & 1 Vict., c. 26, § 9 (Eng.). ↩︎

  47. C. Douglas Miller, Will Formality, Judicial Formalism, and Legislative Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 167, 203-04 (1991). ↩︎

  48. See Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. f. ↩︎

  49. See supra note 5. ↩︎

  50. See, e.g., Fla. Stat. Ann. § 732.503; M.G.L.A. ch. 190B, § 2-504; see also Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *161, manuscript submitted for publication. ↩︎

  51. See, e.g., Fla. Stat. Ann. § 732.503; M.G.L.A. ch. 190B, § 2-504. ↩︎

  52. See Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *161, manuscript submitted for publication. Note, however, that the court may call the witnesses to a will, even if it is self-proved, if the court wishes to examine them in person for some reason. For example, the court may call the witnesses to a self-proved will if it is the subject of a will contest. ↩︎

  53. See, e.g., John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987). ↩︎

  54. See Unif. Probate Code § 2-503 (“Harmless Error”). We note that the Uniform Probate Code, as amended most recently in 2010, does not even require a will to have witnesses, as long as it was acknowledged before a notary public. Unif. Probate Code § 2-502. The official commentary lamented that courts have invalidated wills even when there was no reason to doubt that the document reflected the testator’s wishes, simply because two witnesses did not sign it. Unif. Probate Code § 2-502 cmt a. Given that “lay people (and . . . some lawyers) think that a will is valid if notarized”, the commission recommended that all states validate notarized wills. Unif. Probate Code § 2-502 cmt a. This notary provision, however, is still relatively new, and has yet to be widely adopted or have much practical application. ↩︎

  55. Restatement (Third) of Property, Wills and Other Donative Transfers, § 3.3. See also Unif. Probate Code § 2-503 (granting the court a “dispensing power” to excuse errors in execution as long as testamentary intent is present). ↩︎

  56. See Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *174, manuscript submitted for publication; see also John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987) (noting that in some substantial compliance jurisdictions, courts read the doctrine to require a “near perfect” compliance with the formalities). ↩︎

  57. There are meaningful differences between the harmless error rule and substantial compliance, both doctrinally and in terms of their application. See Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *174-75, manuscript submitted for publication, citing John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987). Nevertheless, for the purposes of this paper, we will frequently refer to them together as “salvage doctrines” that operate to admit formally noncompliant wills to probate. ↩︎

  58. See infra Part A section IV. ↩︎

  59. See John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1, 3-4 (1987). ↩︎

  60. This freedom is subject to some limitations as noted in note 11, supra. ↩︎

  61. John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1, 3 (1987) (“[the formalities are] meant to assure the implementation of [the testator’s] testamentary intent at a time when he can no longer express himself by other means”). ↩︎

  62. See A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 98 (2011). ↩︎

  63. Ashbel G. Gulliver and Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 4 (1941). ↩︎

  64. See Joseph Karl Grant, Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will, 42 U. Mich. J. L. Reform 105, 122 (2008). ↩︎

  65. John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 494 (1975). ↩︎

  66. John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 494 (1975). ↩︎

  67. John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1, 4 (1987). ↩︎

  68. Nev. Rev. Stat. 133.085-1(b)-©, 6(b). ↩︎

  69. A “digitized signature” is the “graphical image of a handwritten signature that is created, generated or stored by electronic means”. Nev. Rev. Stat. 133.085-6©. ↩︎

  70. Nev. Rev. Stat. 133.086-6(a). ↩︎

  71. In re Estate of Javier Castro, Deceased, 2013-ES-00140 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013) (James T. Walther, Judge); see also Kyle B. Gee, Beyond Castro’s Tablet Will: Exploring Electronic Will Cases Around the World and Re-Visiting Ohio’s Harmless Error Statute, 26 Ohio Prob. L. J. 149 (2016). ↩︎

  72. In re Estate of Javier Castro, Deceased, 2013-ES-00140 at *7 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013) (James T. Walther, Judge). ↩︎

  73. In re Estate of Javier Castro, Deceased, 2013-ES-00140 at *7-8 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013) (James T. Walther, Judge). ↩︎

  74. See Sitkoff, R. H. and Dukeminier, J. (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *195, manuscript submitted for publication (noting that “[a]ttestation is normally understood to mean that the witnesses must sign the will, thereby attesting to the testator’s signature, but not also to require an attestation clause . . .”). ↩︎

  75. In re Estate of Javier Castro, Deceased, 2013-ES-00140 at *8 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013) (James T. Walther, Judge), discussing Ohio Rev. Stat. § 2107.03. ↩︎

  76. Sitkoff, R. H. and Dukeminier, J. (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *195, manuscript submitted for publication. ↩︎

  77. 134 S.W.3d 830, 833 (Tenn. Ct. App. 2003). ↩︎

  78. Litevich v. Probate Court, Conn. Super., 2013 WL 2945055, at *2 (Super. Ct. New Haven Dist. 2013). ↩︎

  79. Litevich v. Probate Court, Conn. Super., 2013 WL 2945055 at *21-22 (Super. Ct. New Haven Dist. 2013) (declining to apply the harmless error doctrine because it was not part of Connecticut law, and further noting that the doctrine is “no panacea”). ↩︎

  80. Litevich v. Probate Court, Conn. Super., 2013 WL 2945055 at *22 (Super. Ct. New Haven Dist. 2013), ↩︎

  81. Litevich v. Probate Court, Conn. Super., 2013 WL 2945055 at *22 (Super. Ct. New Haven Dist. 2013) (“Failure to sign a will at all, as with the case presently before the court, is considered by those states that have used the [harmless error] doctrine to be one of the most difficult defects to overcome. Therefore, even if Connecticut were to follow the doctrine, it would still be a stretch to apply it to facts such as those presently before the court, where the will was signed by neither the decedent nor any witnesses. The ‘electronic signature’ claimed by the plaintiff is not sufficient because, even if electronic signing were allowed by [Connecticut law], a question the court does not now decide, the signature does not appear on the face of the will. Accordingly, the court rejects the plaintiff’s arguments relating to the harmless error doctrine.”). ↩︎

  82. Litevich v. Probate Court, Conn. Super., 2013 WL 2945055 at *22 (Super. Ct. New Haven Dist. 2013). ↩︎

  83. Rioux v. Coulombe (1996), 19 E.T.R. (2d) 201 (Quebec Sup. Ct.) (Canada). In that case, the decedent committed suicide, leaving a note with directions to an envelope that contained a disk marked “this is my will / Jacqueline Rioux / February 1, 1996.” The disk contained “unsigned directions of a testamentary nature”. The file containing these directions “had been saved to memory on the same day that the deceased had noted in her diary that she had made a will on [the] computer.” The court admitted the typed document using a salvage doctrine (analogous to substantial compliance) intended specifically for holographic (handwritten) wills. Id, at 202. ↩︎

  84. See MacDonald v. The Master, 2002 (5) SA 64 (N) (South Africa). ↩︎

  85. MacDonald v. The Master, 2002 (5) SA 64 (N) at *67 (South Africa). ↩︎

  86. MacDonald v. The Master, 2002 (5) SA 64 (N) at *69 (South Africa) (“This section was introduced because as it often happened in the past that effect could not be given to a testator’s last expression regarding the devolution of his estate because some or other formality in the execution of his will had not been complied with. This section became known as the ‘rescue provision’ of the Wills Act . . .”). ↩︎

  87. MacDonald v. The Master, 2002 (5) SA 64 (N) at *72-73 (South Africa). ↩︎

  88. See Van der Merwe v. Master of the High Court and another, (605/09) [2010] ZASCA 99 (Supreme Court of Appeal of South Africa) (Sept. 6, 2010). ↩︎

  89. Van der Merwe v. Master of the High Court and another, (605/09) [2010] ZASCA 99 at *[16-17] (Supreme Court of Appeal of South Africa) (Sept. 6, 2010). ↩︎

  90. See Sitkoff, R. H. and Dukeminier, J. (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *195-96, manuscript submitted for publication. ↩︎

  91. In re Yu [2013] QSC 322. ↩︎

  92. In re Yu [2013] QSC 322, at *[1]. ↩︎

  93. In re Yu [2013] QSC 322, at *[2], citing and interpreting the Queensland Succession Act of 1981, § 18. ↩︎

  94. In re Yu [2013] QSC 322, at *[9]. ↩︎

  95. In re Yu [2013] QSC 322, at *[5]. ↩︎

  96. In re Yu [2013] QSC 322, at *[6-7]. ↩︎

  97. In re Yu [2013] QSC 322, at *[8-9] (noting that Yu’s appointment of an executor “reflects an intention that the document be operative”). ↩︎

  98. See Mellino v. Wnuk & Ors, [2013] SQC 336 (Supreme Court of Queensland) (Australia). ↩︎

  99. The court wrote: “I’m satisfied that the DVD is a document within the meaning of the section, and I’m also satisfied that the document embodies or was meant to embody the testamentary intentions of the deceased man. I think that is clear from the fact that he has written “my will” on the DVD itself and also from the substance of what he says in the video recording on the DVD. It is clearly made in contemplation of death, and the deceased man was found dead, having committed suicide, at some point after the video recording was made. He discusses his intention to suicide in the document. He is at some pains to define what property he owns, and it seems to me quite clear that, although very informal, what the document purports to do is to dispose of that property after death. Further, I am satisfied that the substance of the recording on the DVD demonstrates that the DVD itself without any more formality on the part of the deceased man would operate upon his death as his will. He comes very close to saying that exact thing informally, explaining that he’s no good with paperwork and that he hopes that his recording will be sufficiently legal to operate to dispose of his property. So it seems to me that the three tests which the court traditionally have regard to are satisfied.” Mellino v. Wnuk & Ors, [2013] SQC 336 at *[1-20] (Supreme Court of Queensland) (Australia). ↩︎

  100. Sitkoff, R. H. and Dukeminier, J. (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at 196, manuscript submitted for publication, citing Estate of Currie [2015] NSWSC 1098; Yazbek v. Yazbek [2012] NSWSC 594; Mahlo v. Hehir [2011] QSC 243. ↩︎

  101. John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L.J. 1, 14 (2012). ↩︎

  102. See supra Part B Section II. ↩︎

  103. 15 U.S.C.A. §§ 7001-7006; Unif. Elect. Transactions Act (1999); see also Steven Domanowski, E-SIGN: Paperless Transactions in the New Millennium, 51 DePaul L. Rev. 619, 642-43 (2001). ↩︎

  104. See Designate Beneficiaries, personal.vanguard.com, https://personal.vanguard.com/us/litfulfillment/ELFMainResults?cat=MAFM&subCat1=UACT&subCat2=BENE (allowing members to click “Complete Online” for a “Transfer on Death (TOD) Plan Kit” and an “IRA Beneficiary Designation Kit”). ↩︎

  105. See How to Update Your Beneficiaries, fidelity.com, https://www.fidelity.com/customer-service/how-to-update-account-beneficiaries (“Keeping up-to-date beneficiary information on all of your accounts is easy to do and only takes a few minutes online . . . If you’ve updated online, and no additional consent or paperwork is needed, your changes will be effective in just a few minutes . . .”). ↩︎

  106. Jhlifeinsurance.com, Welcome to Customer Service Forms, https://jh1.jhlifeinsurance.com/JHServiceNet/Online_Forms/Customer_Service (“After completing the online form(s), you will have two options - e-Sign and e-Submit the form(s) to John Hancock, or print, sign and mail to John Hancock.”). ↩︎

  107. Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. i. ↩︎

  108. Unif. Probate Code, § 2-502, cmt. a. ↩︎

  109. See supra note 73. ↩︎

  110. Under a modern interpretation, an electronic writing such as Javier Castro’s will might also satisfy the 1677 Statute of Frauds—like the Uniform Probate Code, the Restatement (Third) of Property and the Ohio statute at issue in Castro, the Statute of Frauds required that wills be “in writing”, and not specifically reduced to paper or tangible form. An Act for Prevention of Frauds and Perjuries, 1677, 29 Car. 2, ch. 3. ↩︎

  111. Unif. Elect. Transactions Act § 7© (1999). ↩︎

  112. Unif. Elect. Transactions Act § 3(b)(1), cmt. to Section 3, (4). ↩︎

  113. Unif. Probate Code, § 2-502, cmt. a. Thus, wills have been admitted to probate despite being written on unconventional media, such as the fender of a tractor. See, e.g., Re Harris Estate (13 July 1948), Kerrobert, SK 1902 (Surr Ct) (Evidence, Notarial Copy of Will) (admitting to probate a will scrawled onto a tractor’s fender after the tractor pinned the testator in an accident, reading “In case I die in this mess I leave all to the wife”). ↩︎

  114. Jeff Schewe, Understanding Metadata, NISO Press 2004, at *1 (PDF on file with the author). ↩︎

  115. See Adobe.com, Extensible Metadata Platform (XMP), http://www.adobe.com/products/xmp.html. ↩︎

  116. Jeff Schewe, Understanding Metadata, NISO Press 2004, at *10 (PDF on file with the author) (“Much basic structural and administrative metadata is supplied by the technical staff who initially digitize or otherwise create the digital object, or is generated through an automated process.”). ↩︎

  117. Jeff Schewe, Understanding Metadata, NISO Press 2004, at *12 (PDF on file with the author). ↩︎

  118. Jeff Schewe, Understanding Metadata, NISO Press 2004, at *1 (PDF on file with the author). ↩︎

  119. Jeff Schewe, Understanding Metadata, NISO Press 2004, at *2 (PDF on file with the author). ↩︎

  120. Support.office.com, Types of Hidden Data and Personal Information (describing the metadata that can be included in a Microsoft Word file, including the following: “Document properties, also known as metadata, include details about your document such as author, subject, and title. Document properties also include information that is automatically maintained by Office programs, such as the name of the person who most recently saved a document and the date when a document was created. If you used specific features, your document might also contain additional kinds of personally identifiable information (PII), such as e-mail headers, send-for-review information, routing slips, and template names.”), https://support.office.com/en-us/article/Remove-hidden-data-and-personal-information-by-inspecting-documents-356b7b5d-77af-44fe-a07f-9aa4d085966f#__toc312143396. ↩︎

  121. See generally Jeff Schewe, About Metadata, Technical Paper, Adobe White Paper (PDF on file with the author). ↩︎

  122. Ralph C. Losey, Hash: The New Bates Stamp, 12 J. Tech. L. & Pol’y 1, 2 (2007). ↩︎

  123. We note that some forms of metadata—such as hashing data—are considered more reliable than others. Thus, an evidentiary examination of metadata may result in the denial of probate to many electronic documents whose data history is insufficient to authenticate an uncorrupted will. We would not object to this result—indeed, it is merely a consequence of a stringent evidentiary inquiry. Not every electronic document will survive the scrutiny of a probate court, even if it contains some metadata evidence. This fact should not prevent the admission of those electronic wills that do pass muster. ↩︎

  124. Unif. Elect. Transactions Act § 2(8) (1999). ↩︎

  125. Unif. Elect. Transactions Act § 7(d) (1999). ↩︎

  126. See supra Part B Section IV. ↩︎

  127. See Va. Code Ann. § 47.1. ↩︎

  128. See The Virginia Electronic Notarization Assurance Standard, Version 1.0, Secretary of the Commonwealth, Richmond, VA, Article 1.2(a), January 21, 2013 at *4, available at https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf (“In performing electronic notarial acts, an electronic notary shall continue to adhere to all rules governing paper-based notarial acts, except that notaries performing online notarial acts can allow signers to appear before the electronic notary via two-way live video and audio conference, consistent with Virginia Code §47.1-2 and §19.2-3.1 B1, B2, and B3.”). ↩︎

  129. See, e.g., In re Estate of Javier Castro, Deceased, 2013-ES-00140 at *8 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013) (James T. Walther, Judge). ↩︎

  130. We note that at least one state has already indicated a resistance to similar reasoning. In Marshall v. Scalf, the court found that a signature, which had been notarized by viewing a video recording of the signatory affixing her signature to the document, was not properly notarized because the signatory had not appeared in the notary’s presence over the video. (Ct. App. Cuyahoga Cnty., 8th District, Ohio, at *[18-23] July 19, 2007), 2007 WL 205209. Of course, in that case, there was never a live webcam conference between the witness and notary. Nevertheless, in 2011, the Ohio Attorney General issued a Consumer Advocate Scam Alert referring to the Virginia electronic notary law (which would come into effect a year later) clarifying that “Ohio law has not changed” and “‘online webcam notarization’ is invalid in Ohio . . . [i]f you are not physically present (in person) with the notary public at the time of signing, the notarization is invalid”. Ohioattorneygeneral.gov, Consumer Advocate, Scam alert: online notarization, 25 July 2011, http://www.ohioattorneygeneral.gov/Media/Newsletters/Consumer-Advocate/July-2011/Scam-alert-online-notarization. ↩︎

  131. Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates, 149 (9th ed. 2013). ↩︎

  132. Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. p. ↩︎

  133. Restatement (Third) of Property, Wills and Other Donative Transfers § 3.1 cmt. p. ↩︎

  134. Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *152-53, manuscript submitted for publication. ↩︎

  135. Sitkoff, R. H. and Dukeminier, J., (2017), Wills, Trusts, and Estates, Chapter 3 (Draft of February 9, 2016), at *152-53, manuscript submitted for publication. ↩︎

  136. See New to Teladoc?, Teladoc.com, https://member.teladoc.com/signin (last visited Jan. 1, 2017) (“Teladoc is a national network of U.S. board-certified physicians and pediatricians that lets you resolve your routine medical issues, on-demand 24/7, via phone or online video consultations from wherever you happen to be.”). ↩︎

  137. See A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 98 (2011). ↩︎

  138. Discussed supra in Part B Section IV. ↩︎

  139. See Va. Code Ann. § 47.1-6.1; see generally The Virginia Electronic Notarization Assurance Standard, Version 1.0, Secretary of the Commonwealth, Richmond, VA, Article 1.2(a), January 21, 2013, available at https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf. ↩︎

  140. See The Virginia Electronic Notarization Assurance Standard, Version 1.0, Secretary of the Commonwealth, Richmond, VA, Article 1.2(a), January 21, 2013 at *4, available at https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf (“In performing electronic notarial acts, an electronic notary shall continue to adhere to all rules governing paper-based notarial acts, except that notaries performing online notarial acts can allow signers to appear before the electronic notary via two-way live video and audio conference, consistent with Virginia Code §47.1-2 and §19.2-3.1 B1, B2, and B3.”). ↩︎

  141. See Va. Code Ann. § 47.1-7 (requiring one of the following to authenticate a signer’s identity: personal knowledge of identity by the notary, reliance on prior in-person identity proofing by a third party, or a digital certificate authorized by either biometrics or a Personal Identity Verification card issued in conformance with the National Institute of Standards and Technology). ↩︎

  142. The Virginia Electronic Notarization Assurance Standard, Version 1.0, Secretary of the Commonwealth, Richmond, VA, Article 2.1, January 21, 2013 at *4, available at https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf. ↩︎

  143. Va. Code Ann. § 47.1-14© (“If video and audio conference technology authorized under Section 47.1-2 is the basis for satisfactory evidence of identity and the principal’s identity has been ascertained upon presentation of such satisfactory evidence of identity, the electronic notary shall keep a copy of the recording of the video and audio conference and a notation of the type of any other identification used. . . . The electronic record of an electronic notarial act shall be maintained for a period of at least five years from the date of the transaction.”). ↩︎

  144. See The Virginia Electronic Notarization Assurance Standard, Version 1.0, Secretary of the Commonwealth, Richmond, VA, January 21, 2013 at *1, available at https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf. ↩︎

  145. See Joseph Karl Grant, Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will, 42 U. Mich. J. L. Reform 105, 135-38 (2008) (noting that “testators would still need the legal training and expertise of an attorney to plan the disposition of their estate” and suggesting that attorneys could also make use of these innovations). ↩︎

  146. See Uniformlaws.org, Uniform Law Commission, Committees, Electronic Wills, http://www.uniformlaws.org/Committee.aspx?title=Electronic Wills (“This committee will draft a uniform act or model law addressing the formation, validity and recognition of electronic wills. The committee may seek expansion of its charge to address end-of-life planning documents such as advance medical directives or powers of attorney for health care of finance.”). ↩︎