The modernization of probate codes has been a slow and fraught proposition. States have long set different requirements for formalizing wills. To this day there are still states that require strict compliance with all formalities, including that a will be in writing, that it be signed, and that it also be signed by two witnesses. The COVID-19 pandemic forced legislators into an uncomfortable and reluctant embrace of the twenty-first century. In his recent article, Professor Richard F. Sorrow tracks the unprecedented if clumsy implementation of two controversial reforms of traditional wills: remote attestation and electronic wills.
For centuries, in both England and the United States, the steps required to execute a will had to be followed precisely. A small technicality or flaw could invalidate a will. Perhaps a witness was not in the room at the same time as the other witness or the testator signed the will in the wrong place. As Storrow underscores, society’s main concern was distinguishing between authentic and fraudulent wills. England’s influential Wills Act of 1837 attempted to get it right. To ensure that the will represented the wishes of the testator, without interference from anyone else, courts construed the Act to require strict compliance with all of the formalities. This weeded out many fraudulent wills but also some authentic ones. In fact, the application of strict compliance sometimes led to dispositions that were very different from those the testator intended.
Over time this proved unsatisfactory and courts slowly began to find ways to allow slightly defective wills to be probated. In recent decades, with some prodding from courts, commentators, and the Uniform Law Commission, a handful of states have even adopted the harmless error rule, which explicitly allows defective wills to be probated if there is clear and convincing evidence that the decedent intended the instrument to be a will. To date, harmless error has been adopted by fewer than 20 states. When compared to the modernization of trusts, wills have evolved glacially. Storrow underscores this continuing conservatism on the part of legislatures. Despite the rise of electronic documentation and signatures in the world of contracts, the vast majority of legislatures rejected electronic wills in the past few decades. Witnesses still had to be physically present and signatures delivered the old-fashioned way.
To highlight how strange this might be for younger generations, note that the last two apartment leases I signed were completed electronically. I received, reviewed, initialed, and signed all documents on electronic platforms. I did not meet the landlords beforehand. The traditional law of wills, by contrast, has resisted the simplicity and convenience of digital transactions. Legislatures have been especially reluctant to embrace remote attestation: that is, witnesses who observe the testator’s execution or acknowledgement of the will from a separate location via video conferencing technology and then conduct a relay exchange of scanned documents to sign the will. The pandemic changed this calculation. Suddenly remote witnesses became a public health necessity because the traditional formalities were unsafe amid an airborne pandemic. That, in turn, opened up the possibility that courts might finally leave strict compliance behind. However, the reality is more complicated, according to Storrow.
So what did the pandemic teach us? (1) The remote witnessing reforms were mostly temporary and seen as emergency concessions. Most states went back to the normal course of things once social distancing guidelines ended, (2) Allowing for remote witnessing did not mean electronic signatures were permitted—printers, snail mail, etc. were still involved, (3) Many of the executive orders were hastily put together and not well thought out, (4) Questions linger regarding the importance of witnesses being in the same state as the testator.
For those hoping for twenty-first century wills, 2023 will not be the year when those wills become universally available. According to Storrow, we on a much slower trajectory toward wills that would appeal to the digital natives of Gen Z or Alpha. Unfortunately, while a small group of practitioners and experts are keenly interested in modernizing the law of wills, these issues do not generally attract the attention of advocacy groups or the wealthy who tend to favor trusts. Modernization seems to makes sense, but it is by no means a priority. This could be a good thing, given the risk of unintended consequences that would accompany a thorough overhaul of the Wills Act. For the time being, as Storrow shows, we will have increased data and experimentation resulting from the unexpected, but temporary, changes the pandemic brought.
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