By: Juliya L. Ismailov
Introduction
In the post-pandemic trusts and estates world of remote notarization in New York and other states, the momentum has also picked up to legitimize electronic Wills (“E-Wills”) and, in doing so, catch up with other areas of legal practice allowing electronic signatures.
Currently New York legislature is considering two proposals to amend the New York law to implement E-Wills. This article highlights some of the risks in the current proposals perceived by some as weighing against the convenience and efficiencies offered by E-Wills.
The Uniform Electronic Wills Act (UEWA) has been adopted by 5 states, DC and US VI; one state passed a “substantially similar” statute; and 6 other states, including Florida, have adopted E-Wills statutes that do not conform to the UEWA.
The two pending New York proposals, broadly modeled on the UEWA, are considered unsatisfactory in their present form by some because they could:
water down protections of traditional paper Will execution standards, and
create disparity between paper and E-Will execution formalities that can result in further probate delays and probate litigation.
Summary of Proposals
The following are the salient points of the proposed legislation that are deemed problematic:
Notarizing Required for E-Wills vs. Two Witnesses Required for Paper Wills: Currently, for a Will to be valid under New York law, two disinterested witnesses are required to sign the Will. A notary is not required for a valid Will execution, but is required for the self-proving affidavit addendum to the Will (the affidavit is used to avoid having witnesses physically testify during the probate of the Will).
The pending legislative proposals would allow notarizing of an E-Will without witnesses, which would be inconsistent with the execution standard for paper Wills.
Identifying the Original Will: The lack of specific guidance in the proposals on what constitutes a bona fide original of the Will (for example, by requiring, as in Florida, a “qualified custodian” to certify under oath for probate that the Will stored by him/ her is the original that has not been altered since the date of its electronic execution) will create confusion because:
An E-Will is easily copied and circulated, and without a qualified custodian safeguarding the E-Will “original,” every copy of an E-Will, without further safeguards, could be deemed an original, triggering in NY the requirement to probate every original of the Will to overcome the presumption that multiple original Wills revoked each other – which would multiply the costs and duration of an already lengthy probate process in New York; and
Revoking a digital Will by a “physical act” (which is contemplated in the proposals, as with paper Wills, in addition to revocation in writing) is complicated where there are multiple digital copies of the same E-Will and no qualified custodian guarding the authoritative original.
Harmless Error Doctrine: The proposals include the adoption of the “harmless error doctrine” of the Uniform Probate Code (UPC) for both paper and E-Wills, allowing a Will (and Will revocation, amendment or revival) that does not fully comply with execution requirements to be probated upon “clear and convincing evidence” of the decedent’s intention that the document or writing constitute such document. This is viewed by some as efficiency-driven legislation that would further dilute time-honored Will execution standards and lead to probate delays and litigation.
Conclusion
Historically, the sanctity of a person’s Last Will and Testament is protected by ceremony and strict execution requirements of the state law, as well as the Surrogate’s Court probate procedure. The high standards of Will execution – with the testator, two disinterested witnesses and a notary all gathered in person for this serious occasion – are intended to protect the will of the testator, before and after death, against money-hungry ill will of predators.
As New York seeks to modernize its Will execution procedures, many potential questions come to mind:
Will a Will that is too easy to sign, and, further, that is easy to probate without meeting all the execution standards under the harmless error doctrine, dilute the time-honored protections for the testator?
Are lawyers clinging to an aged tradition that has lost touch with the times?
Will the updates (or lack of them) to the state-wide Surrogate’s Court procedures and local court rules to prevent inconsistencies in the law and its application further delay the already lengthy probate process?
In the best scenario of multi-front procedural adjustments, or in the worst scenario their lack or slow adoption, will Will-substitutes like Revocable/ Living Trusts become even more popular tools in order to avoid the pains of the probate process?
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