Internet Wills: A Path to Enforceability

E‑wills, as proposed in the Uniform Electronic Wills Act (UETA), offers a path to allow wills that have been electronically signed and stored in the cloud to be enforceable. Some states have started down that path.

ByJonathan D. Bick|March 06, 2020  New Jersey Law Journal ---- Jonathan D. Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

Ideally, an internet will might allow a person to create and execute a will quickly, at home, and without the cost of an attorney. More specifically, internet users would use a sign-on to internet-based software that allows the user to create a last will and testament, forward it to an internet notary, and the internet notary would do the rest.

Generally, internet wills are not enforceable in most states, including New Jersey, New York and Pennsylvania. Most states require a will to be signed and notarized in order to be enforceable, though Nevada and Indiana statutes allow electronic signatures.

Nevada is the state that has adopted statutes which most closely implement internet wills. Nevada’s statutes allow enforceable wills, electronic wills capable of being signed electronically by their testators. More specifically, the Nevada statute NV Rev. Stat. §133.040 states:

No will executed in this State, except such electronic wills …. as are mentioned in this chapter, is valid unless it is in writing and signed by the testator …, and attested by at least two competent witnesses who subscribe their names to the will in the presence of the testator.

Currently, a will must be stored in a physical location, because an uploading copy does not constitute an original which may result in invalidity. A facsimile of a will is not typically recognized as a legitimate will.

While internet sites may allow users to draft content suitable for a will, the user is usually required to print out the will and have it signed by a notary and witnessed by two people, otherwise the will may not be enforceable.

The United States normally recognizes the enforceability of electronic signature with some exceptions, including wills. More particularly, the Electronic Signatures in Global and National Commerce 114 Stat. 464 (2000), Section 103(a)(1) of the Act, excludes “a statute, regulation, or other rule of law governing the creation and execution of wills, codicils, or testamentary trusts.”

The Nevada Revised Statutes Chapter 133 – Wills, NRS 133.085 – “Electronic will,” which is mentioned in NV Rev. Stat. §133.040, states that an electronic willrequires several features. It must be written, created and stored in an electronic record, contain electronic signatures, include at least one authentication characteristic of the testator—such as a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature, or other authentication using a unique characteristic of the person—and be transmitted to and maintained by a custodian designated in the electronic will at the custodian’s place of business in Nevada or at the custodian’s residence in Nevada.

Thus, even in Nevada, additional steps are necessary to enable an internet will to be found lawful. Legal virtual notarization services are currently available for real estate and legal documents, and thus are likely to be employed to fulfill the requirements of the Nevada electronic will statute and others that might use the Nevada electronic will statute format.

Internet notarization services employ software that runs on a variety of web-enabled desktop or laptop with a webcam or via any Android, iPhone or iPad. The service enables an internet video meeting between the users and a notary.

One internet notarization service works as follows:

• A user registers on the notarization services internet application;
• The user uploads the material to be notarized and evidence of the user’s identity;
• The application verifies the user’s identity via a series of questions using a knowledge-based authentication system;
• Upon verification, the user is connected with an appropriately commissioned notary public via live audio-video call;
• The notary reconfirms the user’s identity visually, using a government issued photo ID;
• The notary witnesses as the user electronically signs the document;
• Thereafter, the appropriately commissioned notary public signs and seals the uploaded material; and
• The notary sends instructions as to how to access the notarized material via the internet and how to have material delivered.

For authentication purposes, this service records and makes available the video call if the notarized material is ever contested.

It should be noted that a valid federal ID is insufficient proof of identity for e-signature states, such as Indiana. Indiana’s e-signature statute requires genetic evidence, such as a fingerprint or retinal scan, in order to be enforceable.

The use of internet wills could result in a fraudulent outcome. For example, if the video transaction is conducted with a party other than those executing a will outside the video frame exerting undue influence. Thus, internet wills might result in additional difficulties for people at risk of being exploited.

It is argued that attorneys not only guard against claims of a testator’s lack of mental capacity to sign a will and the exercise of undue influence, duress and coercion in the signing of a will, but face-to-face attorney assistance may also allow the client to better understand options and minimize inheritance taxes.

Alternatively, it may be argued from a legal perspective that a video of a will execution may be superior to the existing signature evaluation as an indication of diminished capacity. More specifically, the court would have the benefit of evaluation with both an image and voice of the signing party as well as a signature to determine if the signing party understood what was being signed, rather than merely a signature. Signatures have often been used to suggest diminished capacity when the signer’s signature has changed from a beautiful script to a scrawl.

The use of internet wills may also result in the “unauthorized practice of law” if an entity allows internet access to an electronic will process and that process is not recognized in the internet user’s state. For example, seeJanson v. LegalZoom.com, 802 F. Supp. 2d 1053, (2011), in which a Missouri court found that LegalZoom was engaged in the unauthorized practice of law because it offered a service rather than a product.

It should be noted that technical solutions are available to ameliorate or eliminate this outcome. Specifically, one low-cost option is to employ an internet filter software, such as net nanny software. Net nanny programs provide content-control software capable of monitoring computer activity. The software allows a computer user to tag specially identified content. Some net nanny software systems allow the user to block and filter internet content, place time limits on use, and block specific transactions, in addition to tagging incoming content. Many internet filter software programs, such as net nanny software, exist—some with a cost of 50 cents per server, per month.