Gerry W. Beyer, JD, law professor at Texas Tech University School of Law, Lubbock, Texas. ProfessorBeyer.com
Some long-established rules governing the signing of wills are changing. The result could be increased convenience—but also an invalid will if you make a mistake.
Whether the will is do-it-yourself (DIY) or created by a lawyer, it now is legal to create and sign the will on a digital device such as a computer or tablet, rather than with pen on paper, in Arizona, Indiana and Nevada. The change takes effect in Florida on July 1, and the recent approval of the Uniform Electronic Wills Act by the Uniform Law Commission, an influential nonprofit, likely will encourage many other states to follow.
Also in those states, electronic wills can be stored digitally rather than in physical form…and—in some cases—witnesses and notaries can observe the will being signed remotely via webcam. “eWills” provide a convenient alternative for many, including those far from their lawyer…homebound with health problems…or seeking to update a will on short notice. But eWills have potential risks…
Subtle differences in state laws could create confusion that might lead to invalid wills. Example: “Remote witnessing” is allowed in Nevada and will be allowed in Florida—witnesses can watch the signing via webcam—but it’s not allowed in Arizona and Indiana.
The rules could motivate increased use of DIY software and websites, but DIY wills can create problems because of imprecise language or lack of expertise. Example: A man leaves different but roughly equal assets to each of his children. But if the value of some assets changes dramatically by the time he dies—or if some assets are sold or destroyed—he might unintentionally leave much more to some of his children than to others.
Nullifying an eWill could be complicated. A paper will can be shredded. But can a digital will be nullified just by hitting delete? What if it still exists in the computer’s digital trash can? What if multiple copies have been saved? Rules vary—check with an attorney.
eWills might be challenged by someone contending that there was undue pressure on the signer. These concerns may be overblown—undue pressure is an issue with any will, not just an eWill. Still, pan the webcam around the room to show that no one is standing out of frame exerting influence.
Moving to a state that doesn’t accept eWills might invalidate one that was executed in a different state. Check with an attorney in the new state.