The practice of Trusts and Estates law is continually being transformed by technology, and the conveniences it can
bring to the practice of law and to clients. For example, the use of technology was invaluable during the COVID-19 pandemic when the public was isolated from each other, and Executive Orders authorized remote notarization of documents and the remote witnessing of estate planning documents.1 Artificial intelligence made its way into a Kings County Surrogate’s Court judicial decision for what is believed to be the very first time.2 And the successful implementation of remote notarization during the pandemic led to New York codifying remote online notarization in June 2023.3 Taking into consideration currently pending legislative proposals, it is inevitable that technology will continue to change the Trusts and Estates practice.
It is therefore little surprise that given the success and implementation of online notarization, legislation to permit electronic wills (or “e-wills”) has now arrived. Currently, there are two pending legislative proposals that seek to amend the New York Estates, Powers and Trusts Law (EPTL) and the State Technology Law to authorize the creation and execution of e-wills in New York State. However, as discussed below, the legislative proposals, A.7702 (Lavine) and S.8501 (Hoylman-Sigal) (collectively referred to as the “Proposals”), significantly deviate from New York’s current substantive law concerning traditional “paper wills.”
The Proposals are broadly modeled on the Uniform Electronic Wills Act (UEWA), which was drafted by the Uniform Law Commission, and has been adopted by five states: Colorado, Idaho, North Dakota, Utah, and Washington, plus the District of Columbia and the United States Virgin Islands. Minnesota passed an e-wills statute which is “substantially similar” to UEWA. Six other states (Arizona, Florida, Indiana, Nevada, Illinois, and Maryland) have enacted e-will statutes that do not comport with the UEWA.
Article 3 of the EPTL contains five parts setting forth the substantive law of wills, including, inter alia, what property may be disposed of by a will (Part 1), the formal requirements for executing a will (Part 2), rules governing testamentary dispositions (Part 3), the revocation of wills (Part 4), and choice of law rules for estates with connections to a jurisdiction other than New York (Part 5). If enacted, the Proposals would create Part 6, titled the New York Electronic Wills Act (EPTL 3-6.1).
As all seasoned Trusts and Estates practitioners know, the requirements to execute a paper will are set forth in EPTL 3-2.1 and are relatively straightforward. The statute provides that except for nuncupative and holographic wills, “every will must be in writing and executed and attested” in the manner set forth in the remainder of the statute. The requirements include that:
- The testator or another person at the testator’s direction must sign the will at the end;4
- The testator’s signature must be made in the presence of each of the attesting witnesses – of which there must be at least two – or acknowledged by the testator to each of the attesting witnesses to have been affixed by him or by his direction;5
- The testator must declare to each of the attesting witnesses that the instrument he signed is his will;6 and
- The attesting witnesses shall, within 30 days, attest the testator’s signature by signing their names and providing their addresses at the end of the will.7
The Proposals deviate from the long-standing law in several ways that, if enacted, would create a two-tiered system where e-wills and paper wills will be treated differently. They also contain certain ambiguities that, if unaddressed, would require a great deal of clarification by the Surrogate’s Courts.
Witnessing by Notarization. Proposed EPTL 3-6.5(a) (3)(B) provides that an e-will may be electronically notarized in lieu of being witnessed by two attesting witnesses. This is a stark deviation from EPTL 3-2.1 and would create a two-tiered system where the fundamental requirements for due execution are different for paper wills and e-wills. It is also a vast expansion on the powers of a notary, whose sole function is to verify the identity of the person signing an instrument. By contrast, an attesting witness is required to ascertain whether the testator was over the age of 18, of sound mind and memory, suffered from no defects of sight or hearing, could read or write in the English language, and was not the subject of duress or undue influence.
A concern with the Proposals is that by dispensing with the requirement of two or more attesting witnesses, there would be no one who could attest to these facts either at the execution or later at a New York Surrogate’s Court Procedure Act (SCPA) 1404(4) examination. This would substantially increase the possibility of testators being the subject of fraud or undue influence, or signing a document that they do not know is their will. It will also increase the difficulty of the court making an independent judgment about the validity of the propounded will, which is required by statute.8 Lastly, notary publics are typically not included in a will execution ceremony, as wills are not required to be notarized. Indeed, the only role for a notary at a will execution is to notarize the affidavits of attesting witnesses, a document that is not required for a valid will.
Enactment of the Harmless Error Doctrine. New York has long required strict compliance with EPTL 3-2.1 to prove due execution.9 However, proposed EPTL 3-6.6 introduces the harmless error doctrine by importing § 2-503 of the Uniform Probate Code (UPC), which pertinently provides:
Although a document or writing added upon a document was not executed in compliance with [the statute], the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(1) the decedent’s will,
(2) a partial or complete revocation of the will,
(3) an addition to or an alteration of the will, or
(4) a partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the will.
While 18 states (though not New York) have adopted a version of the UPC, only 12 of those states have adopted some form of the harmless error doctrine.10 Nevertheless, the Proposals would codify the harmless error doctrine for all will executions (not just e-wills) in New York, as the language permits the harmless error doctrine to apply to “a document or writing not executed in compliance with [EPTL] 3-2.1.” This would be a significant shift in New York law, and may lead to more litigation in Surrogate’s Court – particularly with regard to paper wills – as it would enable the probate of documents that do not comply with EPTL 3-2.1 or the New York Electronic Wills Act, and would require the courts to assess whether the testator intended the document or writing to constitute as his or her will. This, in turn, could lead to significant delays in probating wills, and increased costs for litigants.
Physical Revocation of an Electronic Document. Presently, EPTL 3-4.1 governs the revocation of wills. EPTL 3-4.1(a)(1) provides that a “will or any part thereof” may be revoked or altered by another will or another writing clearly indicating an intention to revoke all or part of the instrument. EPTL 3-4.1(a)(2) sets forth that a will may also be revoked by enumerated physical actions: “burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction” performed by the testator or by someone in the presence of and at the direction of the testator.
Proposed EPTL 3-6.7 sets forth how to revoke an e-will and provides that one may revoke all or part of a prior will, and that an e-will can be revoked by “a subsequent will that revokes all or part of the e-will expressly or by inconsistency.” While proposed EPTL 3-6.7(b)(2) provides that an e-will may be revoked by “a physical act . . . with the intent of revoking all or part of the will,” the Proposal does not define a “physical act.” For example, it is unclear whether any of the following would constitute a “physical act” of destroying an electronic file: (1) deleting the computer file holding the e-will; (2) printing the will and writing “revoked” thereon; (3) printing the e-will and ripping it up; or (4) sending an e-mail stating “I revoke my electronic will.” Statutory clarification as to what constitutes a “physical act” is necessary because of the inherent differences between a paper will and an e-will.
Further, New York law provides that if more than one original of the same will is executed, all original wills must be probated, or it will be presumed that the testator revoked his or her will.11 As a result, seasoned practitioners do not have testators execute multiple original wills. E-wills, however, can be easily copied and forwarded with the click of a button. By default, duplicate copies of the same e-will are likely to exist in multiple locations, such as email, the attorney’s document management system, and the client’s electronic files. Therefore, it is unclear what would constitute the “original” e-will that would need to be revoked by the testator and the inherently “non-physical” nature of an e-will, which creates uncertainty for whether a testator’s physical act that was intended to revoke the e-will would constitute a physical revocation of an e-will. Unless the statute more clearly defines what constitutes a “physical revocation” of an e-will, it will be up to the Surrogate’s Courts to decide. This could lead to inconsistent opinions, increased litigation, and delay for litigants seeking to probate e-wills.
Self-Proving E-Wills. Proposed EPTL 3-6.8 sets forth language to make an e-will self-proving at the time of execution. However, the proposed statute is an almost verbatim copy of UEWA’s language and is not specifically tailored to comport with New York’s provisions for self-proving affidavits of attesting witnesses (SCPA 1406), which would create a disparity between e-wills and paper wills.
Although not mentioned in the Proposals, some jurisdictions, as a safeguard, require that an executed e-will shall remain in the custody of a qualified custodian12 to ensure the authenticity of the document and confirm that it was not altered after its execution. Arizona, for example, also requires a qualified custodian to store an e-will in each of the following manners: (i) a photograph or other visual record of the testator and the attesting witnesses that was taken contemporaneously with the execution of the e-will; (ii) a photocopy, photograph, facsimile, or other visual record of any documentation that was taken contemporaneously with the execution of the e-will and provides satisfactory evidence of the identities of the testator and the attesting witnesses, including documentation of the methods of identification used; and (iii) an audio and video recording of the testator, attesting witnesses, and notary public, as applicable, taken at the time the testator, each attesting witness, and notary public, as applicable, placed the person’s electronic signature on the document.13 In Florida, an e-will may simply be self-proved if (i) it is properly acknowledged; (ii) it designates a qualified custodian; (iii) the electronic record is held in the custody of a qualified custodian at all times prior to being offered for probate; and (iv) the qualified custodian certifies under oath that the will has not been altered since its date of execution.14 Thus, it may be prudent for New York to adopt similar safeguards for e-wills, as other jurisdictions have done.
Ultimately, once codified, a probated e-will effectively provides the same legal authority and serves the same purpose as a traditional paper will. However, as the Proposals are currently drafted, it appears the safeguards that have traditionally been considered necessary and reasonable for the proper execution of wills are being exchanged for the ease and accessibility of e-wills. This sentiment not only characterizes the proposed legislation in regard to e-wills, i.e., an e-will does not require two attesting witnesses but appears to pervade the execution of wills as a whole with the codification of the harmless doctrine provision in the proposed statute. In other states, the legislators counterbalanced the convenience of e-wills with additional safeguards, such as requiring the participation of qualified custodians. It remains to be seen whether any safeguards will be considered in New York. E-wills undoubtedly offer easier and more convenient access to estate planning services, but the laws for both methods of wills – paper and electronic – should be consistent and contain assurances so testators and their intended beneficiaries are properly protected. Without proper safeguards in place, the ease, convenience, and financial benefits of e-wills will be outweighed by the substantial delay and increased legal fees incurred in probate proceedings.
Copyright © 2024 New York State Bar Association. Reprinted with permission. NYSBA.ORG/TRUSTS
Endnotes
1 See Executive Order [A. Cuomo] 202.7; Executive Order [Hochul] 202.14.
2 See Matter of Samuel, 82 Misc.3d. 616, 206 N.Y.S.3d 888 (Sur. Ct., Kings County 2024).
3 Executive Law § 135-c.
4 EPTL 3-2.1(a)(1).
5 Id. § 3-2.1(a)(2).
6 Id. § 3-2.1(a)(3).
7 Id. § 3-2.1(a)(4).
8 See SCPA § 1408(1).
9 See Matter of Attanasio, No. 2014-355/A, 2016 N.Y. Misc. LEXIS 2885, 52 Misc 3d 1216(A), 2016 N.Y. Slip Op. 51179(U) (Sur. Ct., Schenectady County 2016), aff’d 159 A.D.3d 1180 (3d Dep’t 2018); see also Matter of Bouvier, No. 2009-61, 2012 N.Y. Misc. LEXIS 1080, at *4, 2012 N.Y. Slip Op. 30565(U) (Sur. Ct., Oneida County 2012).
10 Specifically, Colorado, Hawaii, Michigan, Minnesota, New Jersey, Montana, South Dakota, and Utah have adopted the UPC’s harmless error provision. Four other states (California, Ohio, Oregon, and Virginia) have adopted variations of the harmless error provision.
11 See Matter of Lewis, 25 N.Y.3d 456, 34 N.E.3d 833 (2015).
12 Several states have adopted requirements for who may serve as a qualified custodian. For example, in Arizona, qualified custodians cannot be related to the testator, and they also cannot be a devisee or related to a devisee under the e-will. See Ariz. Rev. Stat. Ann. § 14-2520. In Florida, in order to serve as a qualified custodian, a person must be domiciled in and be a resident of Florida, or be incorporated, organized, or have its principal place of business in Florida. See Fla. Stat. Ann. § 732.524.
13 Ariz. Rev. Stat. Ann. § 14-2520.
14 Fla. Stat. Ann. § 732.523.