We live in a digital world, with technology available all around us. We have become reliant on technology for shopping, banking, house hunting, ordering food, and communication with long distance loved ones.
Florida recently passed the Electronic Wills Act which becomes effective on April 1, 2018 and will authorize the use of electronic wills.
Traditionally, to make a valid will, all states currently require certain formalities, which generally include the will to be in writing, signed by the testator, and witnessed by at least two people. These requirements are important to ensure the testator’s wishes are accurately documented and that the testator is actually competent to sign his or her will. While electronic wills will certainly be more convenient and affordable, there are also some obvious concerns.
The Real Property, Probate and Trust Law Section of the Florida Bar came out publicly against the Florida Electronic Wills Act. The Section was concerned that electronic wills authorize witnesses to appear via remote video webcam technology rather than in person.
Without the physical presence of witnesses, there is the potential for fraud, undue influence, and duress during the will signing, as well as concerns regarding the testator’s competency and capacity to sign the will. The Section recommended, among many things, to require the video to have a 360 view of the room to ensure there is no one in the room whispering answers and instructions to the testator.
The drafters of the Florida Electronic Wills Act took these concerns seriously and built in some safeguards. For example, the testator is required to provide verbal answers to several questions while being videotaped including: “Did anyone assist you in accessing this video conference? If so, who?” and “Has anyone forced or influenced you to include anything in this document which you do not wish to include?” A video of the electronic signing ceremony must also be recorded, with a time-stamp, and stored for future reference.
Unfortunately, the potential for undue influence and fraud is always going to be present when it comes to signing a will.
An electronic will might make it easier for a family member to influence the testator and it might be harder to ensure the testator is actually competent to sign the will.
However, there are definitely some positive aspects to this new estate planning technology.
With electronic Will signings, estate planning will become more affordable for clients, attorneys will be able to work with clients from anywhere within the state, and clients who are hospitalized, bedridden, and even traveling will be able to create their estate plan with ease.
This Act will make it possible for an attorney in Pensacola to assist someone with their estate plan down in Miami!
The Florida Electronic Wills Act is just one more advancement in our ever-changing digital world. It has the potential to help people all over the country, as long as the users follow the rules and do not exploit the convenience. At My Pink Lawyer®, we are always excited to see what the future holds!
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