One of my favorite forms of academic writing is the Note or Comment. Students have an uncanny ability to make the most of issues that professors might overlook.
A case in point is Francesca Torres’s Note, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California? Torres, a rising 3L at McGeorge, skillfully tells the story of California’s failed electronic will statute, Assembly Bill 1667.
As Torres observes, one would have expected AB 1667 to pass. For one, nine U.S. jurisdictions expressly validate wills that are memorialized in pixels rather than on paper, and cases have been trickling into courts in which someone has tried to express their last wishes on a smartphone app or tablet computer. In addition, lawmakers in the Golden State have embraced other cutting-edge probate measures, like the harmless error rule. Finally, California requires attested wills to be signed by two witnesses who were present at the same time. Thus, during the COVID-19 pandemic, estate planners “struggled to find a way for clients to execute a will without physically entering an office.”
Nevertheless, AB 1667 was introduced in 2019 and proceeded to die in slow motion. It first consisted of an ambitious array of rules that governed creating, storing, and proving an e-will. It then endued a ceaseless barrage of amendments, critiques, and proposals from various interest groups. As the California Senate Judiciary Committee put it:
This bill has undergone multiple makeovers, proposing various different schemes for recognizing electronic wills in California. Each new iteration led to multiple rounds of intensive and impassioned discussions. Although it appeared at various points that a product approximating consensus might emerge, disagreements among stakeholders, particularly with regard to the degree of formalities that should be prescribed for electronic wills, persisted and promise to remain intractable.
By the fall of 2020, AB 1667 had been gutted: rather than making digital wills enforceable, it merely deputized the California Law Revision Commission to study the issue. And somehow, even this ghost of a bill failed to pass.
So what went wrong? Torres suggests that lawmakers determined that the costs of e-wills trump the benefits. She acknowledges that digital wills might “provid[e] any easy, comfortable, and convenient method of will drafting.” However, she correctly notes that some e-will statutes—including one that California considered in 2018—were all but drafted by companies like LegalZoom and Willing.com. These do-it-yourself legal service providers have serious skin in the game: not only can they sell digital will kits over the Internet, but they can charge fees to serve as “qualified custodians” that store the completed documents. Thus, one cannot help but wonder whether these “industry statutes” truly serve the public interest.
In addition, Torres raises legitimate questions about whether e-wills facilitate fraud. As she points out, it is exceedingly easy to fake the electronic signature of a testator or witnesses. Making matters worse, a wrongdoer might be able to access an e-will that is stored on a testator’s computer and make changes that are hard to detect.
It is unclear whether California lawmakers will try again in 2021. But if they do, I hope they read Torres’s Note and take her arguments seriously.