Zona Douthit, Esq. Shechtman Halperin Savage, LLP Pawtucket.
For a will to be valid in Rhode Island, R.I. Gen. Laws § 33-5-5 requires a writing signed by the testator, or someone else at his or her direction, to be acknowledged in the presence of at least two attesting witnesses present and signing at the same time. The statute has not been amended since 1956, back when IBM's state-of-the-art computer weighed 2,000 pounds.
People are already creating wills on electronic devices as if the words on a screen were equivalent to paper. An e-will is not one that a person downloads from the Internet for $50, prints, and signs. Those offer their own set of problems. Nor is it a digital scan of the paper version of an executed will. An e-will exists only in the cybersphere, might be witnessed via a video hookup, and is signed and notarized electronically. A few courts have already admitted such wills.
Non-Statutory Electronic Wills
In 2013, Australian courts admitted into probate a will that had been created on a DVD1 and another on an iPhone shortly before the decedents committed suicide, relying on the harmless error rule, which excuses "harmless" defects in the execution of a will if the testator's intent can be proven by clear and convincing evidence. One of the Australian courts also relied on a statutory definition of a writing that included writings "capable of being produced or reproduced."3 In 2017, an Australian court even admitted an unsent text message as a will. The facts of these cases were such that the courts were satisfied with the will's genuineness and the testator's capacity and intent.
The harmless error rule is also followed in a small number of states in the U.S. but not Rhode Island. In 2013, an Ohio court admitted under the harmless error rule a will written with a Samsung Galaxy stylus on the device and properly witnessed.5 Recently, a Michigan court liberally interpreted the harmless error rule to admit an electronic document that only had the decedent's typed name because the court found that it was clearly intended to be a will.6
No Rhode Island opinions have yet equated an electronic document with a "writing" as required by R.I. Gen. Laws § 35-5-5, but there are also none that hold an electronic document is not a writing. However, electronic court filing is now mandatory in most courts. The best course of action is for Rhode Island to define how the probate courts will handle an e-will before some family has to spend thousands of dollars litigating it. As of January 1, 2020, Florida, Nevada, Indiana, and Arizona have laws governing electronic wills.
Electronic Wills Statutes
Electronic wills present the same issues as paper wills: capacity and undue influence, witnesses and execution, revocation, and storage. Below are some highlights of the choices that legislatures have made to deal with these issues. The words and phrases in quotation marks are not clearly defined in the statutes and, in the opinion of this writer, ambiguous.
Capacity and Undue Influence
Every attorney must assess whether a client has the capacity to make a will and whether someone is exercising undue influence. E-wills do not affect the attorney's obligation to exercise good judgment; however, allowing witnesses to be present only in via audio-video communication may give rise to concern as they might not be able to fully assess capacity. A video recording raises issues also. Some attorneys do not do video signing ceremonies now because a recording can be used to supersede the attorney's judgment about capacity and influence if presented to a court or jury. However, representing a client that the attorney has only met via the Internet might make fully assessing capacity and undue influence difficult.
Florida has addressed this issue. An e-will may be witnessed and notarized remotely, unless the testator is a "vulnerable adult" as defined by the state's Adult Protective Service's statute.7 A vulnerable adult is one who cannot "perform the normal activities of daily living or...provide for his or her own care or protection" due to age or disability.8 This may be a reasonable compromise between expediency and precaution.
How is a probate court to know that the signature at the end of a will is that of the decedent? What does “presence” mean since Princess Leia appeared before Obi-Wan Kenobi on Tatooine? The current statutes vary in their answers to these fundamental questions.
The current statutes vary on the definition of presence. Indiana and Arizona follow the traditional rule: the testator and witnesses must be in each other’s “actual” or “physical” presence.9 Florida requires a video recording of the signing ceremony but allows virtual presence. In Nevada, however, an e-will need only have an electronic notary authentication or the electronic signatures of at least two witnesses or an “authentication characteristic” of the testator, such as a fingerprint, retinal scan, voice recognition, facial recognition video recording, a digitized signature, or “other commercially reasonable authentication using a unique characteristic of the person.” This means a will could be admitted to probate without the need of any witnesses. (Nevada also allows drive-thru marriage ceremonies.)