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Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN.

A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)

In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis.

The first model, to which Professor Hirsch devotes the most attention, is a general validating statute. Professor Hirsch analyzes four aspects of this model: the writing requirement, the signature requirement, the self-proving affidavit, and will revocation.

As to the writing requirement, e-wills necessarily differ from paper wills because electronic documents are, of course, paperless. Under the Uniform Act, an e-will must be “readable as text” and, therefore, cannot be an audio or video file. (P. 168.) Professor Hirsch persuasively argues that, once wills are in the digital realm, words can be interchangeable between sound and text; he also notes that Uniform Law Commissioners acknowledge in a comment that “a will dictated by a testator onto a computer file using voice-recognition technology qualifies as an e-will.” (P. 169) The Uniform Act allows the remote witnessing of an e-will, but states have diverged on how witnesses should attest an e-will: some require the physical presence of witnesses, others permit remote witnessing, while still others permit remote witnesses only under limited circumstances. (P. 174.) I found persuasive Professor Hirsch’s critique of remote witnessing because the alarming rise of elder financial abuse and recent scourge of predatory caretakers pose a heightened risk of undue influence, duress, or fraud. (P. 176.)

As to the signature requirement for both testators and witnesses, the Uniform Act and seven states accept names typed into the file of an e-will as a form of electronic execution. Two other states, by contrast, require electronic signatures that are unique to the signatories. (P. 178.) The acceptance of typed (non-unique) names as signatures and the non-requirement of a date to an e-will in the Uniform Act and in six states (with three states requiring a dated e-will) leads Professor Hirsch to propose a notarization requirement for e-wills. (Pp. 181-83.) Notarization can protect against fraud or tampering with the e-will by, among other things, verifying the identities of witnesses and providing a record of the date of signing. (P. 184.)

A paper will can be “self-proved” if attesting witnesses sign an affidavit swearing to their participation in the will-formalizing process. (P. 185.) The Uniform Act, however, authorizes a self-proving e-will “only if the parties execute the e-will and affidavit ‘simultaneously’”—the Uniform Probate Code, by contrast, provides that the parties can “self-prove a conventional will immediately or at any time after the will’s execution.” (P. 187.) Two states currently have draft e-will legislation that omits the Uniform Act’s requirement of simultaneity. (P. 187.) Whether a self-proving affidavit is signed simultaneously with the will or not, allowing the affidavit to appear in the same digital file as the e-will exposes the e-will to tampering because metadata timestamps an electronic file’s last revision, but not the date or time of the e-will’s execution. Professor Hirsch proposes an elegant solution to this problem: “lawmakers could require parties to store any self-proving affidavit created ex post in a file separate from the e-will” so that the parties “could maintain the digital purity of an e-will.” (P. 189.)

Professor Hirsch explains that allowing an e-will to be revoked by physical act (rather than by express revocation by executing a subsequent writing) raises a host of novel issues. To revoke a conventional will by physical act, the testator must perform a revocatory physical act upon the original will with the intention to revoke it. But, assuming that deletion is the digital equivalent of a revocatory act, what file should be deleted? If an e‑will is signed and electronic copies are made immediately (or, even, at a later time), are they all originals? Does revocation of an original e-will by deletion also revoke all copies? The Uniform Law Commissioners nonetheless allowed revocation of an e-will by physical act because “many people would assume that they could revoke their wills by deleting them.” (P. 192.)

Revocation by physical act of an e-will without copies does not seem problematic, but revocation by physical act of an e-will with multiple copies does. One state (Indiana) requires the testator to permanently delete each copy of the electronic will, not just one of them—the Uniform Act, however, indicates in a comment that a “physical act ‘performed on one’ among ‘multiple copies’ suffices [for revocation].” (P. 194.) To explore whether Indiana law or the Uniform Act is more likely to correspond to people’s assumptions, Professor Hirsch undertook the “first-ever survey of popular assumptions about the revocation of e-wills.” (P. 195.) He asked 1,004 Americans if, assuming electronic wills are valid in your state and you created an electronic will in a file on one drive and made a copy of the will in a file on another drive, what do think you would have to do to revoke your will?—respondents could answer: (1) “Delete either one of the electronic will files,” or (2) “Delete both of the electronic will files.” 78% of the respondents indicated that they believed they would have to delete both of the files to revoke their electronic will. (P. 195.) Professor Hirsch concludes, “These data suggest that the Indianians’ rule of revocation better fits natural assumptions, and hence is more likely to minimize legal error, than the Commissioners’ rule.” (P. 195.)

Professor Hirsch’s analysis of the diverse treatment of the foregoing substantive laws (including a discussion of partial revocation and electronic trusts that are beyond the scope of this jot) leads to a view, expressed throughout his article, that legislatures need more time to develop the substantive laws of e-wills. Accordingly, Professor Hirsch supports a rejection of general validating legislation for e-wills. (P. 206.) To prevent existing conventional will legislation from being extended to e-wills, Professor Hirsch believes that the “safer course” is to “enact legislation explicitly proscribing e-wills.” (P. 206.)

The second model for e-will legislation provides for limited validating statutes, which “offer testators digital mechanisms for doing a more limited range of things.” (P. 206.) One example is a draft act in California allowing electronic pour-over wills but not other e-wills. (P. 209.) Professor Hirsch argues that, if a pour-over will is exclusively a pour-over will, then such an “abbreviated” will does not raise independent issues of fraud and allows the trust to become the “focus of attention.” (Pp. 209-10.) In those cases, Professor Hirsch proposes that the fate of the pour-over will can be tied to the fate of the trust. (P. 210.)

A third model for e-will legislation allows e-wills in emergencies. Emergency e-will legislation can co-exist with general validating statutes, but testators in emergencies should be allowed to dispense with formalities. (P. 214.) Although no American or foreign jurisdiction has enacted legislation authorizing e-will only in emergencies, two American states have draft legislation. Ohio has a draft e-will act allowing oral wills “made in the last sickness” with two disinterested witnesses in the testator’s physical or electronic presence, thus allowing for telephone wills. California has a draft e-will act allowing a textual, audio, or video e-will if the testator executed the e-will while “in contemplation, fear, or peril of imminent death, including self-created peril” and only if the testator does not survive “such imminent peril within 48 hours of creating” the e-will. (P. 215.)

The fourth model for e-will legislation provides for open-ended remedial rules, which allow an e-will to become valid “if a court determines that a testator intended an electronic record to function as a will, even though it is improperly formalized.” (P. 219.) A remedial rule could exist with or without any general validating statute for e-wills. (Id.) In 1990, the Uniform Probate Code added a dispensing power (allowing courts to dispense with formalities on a case-by-case basis when proponents seek to probate noncompliant wills), but, as of 2021, only eleven American states have enacted some version of the so-called “harmless-error” rule. (P. 220.) The Uniform Act combines a general validating statute with a harmless-error rule for defective e-wills. (P. 222.)

Of the nine states that enacted e-will legislation, two harmless-error jurisdictions have extended the dispensing power to e-wills. (P. 225.) Professor Hirsch notes that lawmakers considering remedial legislation for e-wills have several choices. First, although the Uniform Act allows for the harmless-error rule to be applied to an improperly-formalized e-will that is “readable as text,” Professor Hirsch supports expanding the rule to validate audio and video wills, noting that, if the harmless-error rule applies to emergencies, then the dispensing power should be broad. A second matter is the burden of proof—currently, the Uniform Act requires that proponents produce “clear-and-convincing evidence” to invoke the remedy of harmless error. Professor Hirsch theorizes that this heightened standard (over the usual civil preponderance of the evidence standard) was lawmakers’ attempt to make “outcomes more predictable and resistant to litigation, except where the equities are too glaring to ignore.” (P. 229.) He argues that the clear-and-convincing standard should be rejected because it is vaguer than a preponderance of the evidence standard and “generates less predictable outcomes, and hence invites more litigation, without any compensating benefits in terms of substantive justice.” (Id.) Professor Hirsch proposes shifting decisions over remediation from probate judges to “a higher court, in which lawmakers have greater confidence.” (Id.)

Professor Hirsch’s comprehensive discussion of four possible legislative models of e-will legislation and his impressive analysis of current and draft legislation in the United States and certain other countries have convinced me that e-wills require their own substantive rules because e-wills can sometimes differ greatly from paper wills. Currently, overall, American legislatures, courts, people, and society appear to have insufficient experience with e-wills. Professor Hirsch, this article, and his previous work on e-wills will help guide us in developing sophisticated and equitable substantive laws for e-wills.

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Cite as: Michael Yu, Electronic Wills Are Just Like Paper Wills, Except When They’re Not, JOTWELL (October 27, 2021) (reviewing Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN),