Florida’s new electronic Wills provisions become effective on July 1, 2020. This will mean that individuals who wish to sign their Will electronically can do so and the Wills will have the same force and effect as a traditional Will. To understand the importance of this new legislation, a review of a traditional Will signing may help.
In a traditional Florida Will signing, the testator must sign the Will in the presence of two witnesses and the witnesses must sign in the presence of each other and of the testator. Furthermore, in order to be self-proving, the Will must then be signed again by the testator and by the witnesses in the presence of a notary. In simple terms, with a traditional Will signing the testator, the two witnesses, and the notary all had to be in each other’s presence and all had to witness the other’s signing. Under prior law, no remote presence for the Will signing was valid.
Under the new electronic Wills statute, the testator, the witnesses, and the notary are all still present but they can be present remotely by audio-video communication technology. In fact, using this technology, the testator, the witnesses, and the notary can all be in different locations. Their presence is accomplished by the audio-video communication technology.
Audio-video communication technology means technology in compliance with applicable law which enables real-time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another. Because parties are able to hear and see each other in real time, they are considered being “present” with one another.
The new statutory provisions establish certain safeguards. Foremost of these is that the signing must be overseen by a specially trained notary. The notary must ask certain questions of the testator, including:
- Are you 18 years of age or older?
- Are you of sound mind?
- Are you signing this Will voluntarily?
- Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?
- Has anyone forced or influenced you to include anything in this Will which you do not wish to include?
- Did anyone assist you in accessing this video conference? If so, who? Where are you? Name everyone you know in the room with you.
Once the Will has been electronically executed, it must be kept by a “qualified custodian” who will be charged with safekeeping Florida electronic wills until the testator dies. A qualified custodian of an electronic Will must meet these requirements:
- Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
- Consistently employs a system for maintaining custody of electronic records and stores electronic records containing electronic Wills under the system; and
- Furnishes for any court hearing involving an electronic Will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
Not all estate planning attorneys are in favor of the electronic format for Will execution. There are concerns that the process may lend itself to a testator being influenced or pressured to sign the Will and that such abuse would be lessened by a traditional Will signings. At this point, given the newness of the process, there seems to be plenty of room for mistakes to be made and problems to arise. As for our firm, we are approaching electronic Will signing on a “wait and see” with the hope that some of the challenges will be worked out before it is implemented full scale.