Online Estate Planning and E-Wills

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Estate Planning & Tax Controversy
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The Uniform Electronic Wills Act (the “E-Wills Act”) was introduced and, finally, approved by the National Conference of Commissioners on Uniform State Laws also known as the Uniform Law Commission (“ULC”) in July of 2019.  The E-Wills Act provides that a Last Will and Testament, a document traditionally printed and executed on paper, can now be created, signed, witnessed and notarized electronically.  The ULC has worked, for over a century, to propose laws in an effort to simplify life for people who live, work, or travel in multiple states and to facilitate interstate commerce.

For example, the 1999 Uniform Electronic Transactions Act, adopted in all but three states, permits electronic signatures in commercial and contract matters.  However, the Uniform Electronic Transactions Act contains an exception for Wills which cannot be electronically signed. The execution requirements of Wills are normally set by state statutes to ensure validity of a Will.  The long-standing tradition of executing paper Wills is now changing as people are increasing using technology in more and more aspects of their lives.

The ULC has provided through the E-Wills Act that a testator's electronic signature or even a “mark,” using a stylus or typed signature, must be witnessed contemporaneously and/or notarized contemporaneously with all physically present.  However, states that adopt the E-Wills Act will have the option to include language that allows remote witnessing of a Will and remote notarization.  The E-Wills Act allows a testator to execute his or her “electronic will” with witnesses who are in the “electronic presence” of the testator and allows probate courts to give such a Will legal effect.  In addition, notaries can be permitted to notarize E-Wills remotely to make a Will self-proving.

Hopefully, the E-Wills Act and online estate planning will not increase fraud and coercion with respect to Will creation and execution.  While New Jersey has not yet adopted the E-Wills Act, the issue of electronic Wills executed under the law of another state is one that New Jersey residents, businesses and Courts are soon to face.

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