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Electronic Wills: Revolution, Evolution, or Devolution

Reproduced with permission from Tax Management Estates, Gifts, and Trusts Journal, Vol 44, No. 1, 01/10/19. Copyright 2019 by The Bureau of National Affairs, Inc. (800-372-1033)

Electronic WillsInternet-based companies are currently encouraging state legislatures to adopt new statutes that will significantly impact Uniform Probate Code (UPC) provisions and other longstanding statutory schemes in order to facilitate widespread marketing and use of online estate planning and notary services in regards to the preparation and execution of wills, trusts, and other related estate planning instruments. Is this evolution or devolution? Will the Uniform Law Committee’s current proposal with regard to electronic wills provide sufficient protections against fraud, undue influence and capacity issues?

In 1968, just over a decade before the internet, John Lennon and Paul McCartney wrote the Beatles’ song, Revolution. Perhaps it was a foreshadowing of societal changes that would result from commercialization of a global system of interconnected computer networks (known as the “Internet”) that now links devices worldwide and has incorporated services and technologies into virtually every aspect of modern life. In Revolution, the Beatles sang:

We all want to change the world
You tell me that it’s evolution
Well, you know
We all want to change the world
Later, in Revolution, the Beatles continue:
You say you got a real solution
Well, you know
We’d all love to see the plan
You ask me for a contribution
Well, you know
We’re all doing what we can

It remains to be seen whether legislation recognizing (and thereby encouraging) use of electronic wills (and other estate planning documents) is a real solution or whether the better path is continued use of the UPC harmless error approach to such instruments (which require clear and convincing evidence that an instrument represents testamentary intentions, when the instrument doesn’t fully comport with formal execution requirements for a valid enforceable will).

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