By Gerarda M. Culipher, Esq.
Founding father John Hancock, then-President of the Second Continental Congress, signed the Declaration of Independence with his enormous signature (according to American apocrypha) so that it was “large enough to be seen without spectacles!” Our fascination with signatures is ancient. A signature has drama; it implies intentionality and ownership of our mind’s eye. When applied to writing our Last Will & Testament, the law calls that mindset “testamentary intent.” And of all the legal intent standards “testamentary intent” is the loosest and the most indulgent in all law. And the proof, the witness, the accountability of our intentionality… is our signature at the bottom of the Will.
But, in today’s world where students are no longer even learning cursive, can we e-sign our Will? And can the overwhelming, and liberating, trend for “uniform statutes” that permit electronic transactions in the commercial context, be expanded to cover testamentary documents? How far will digital intent reach? On the East Coast, some jurisdictions have adopted E-Wills, while others, like Virginia, have not expanded the digital signature’s reach to testamentary documents yet. And over on the Pacific, a recent California Probate Court case restated the limits to digital signature in the Wills & Trusts context, where the state legislature has not yet acted.
51 State Statutes on Will Signatures?
Trusts and Estates are generally a matter of state law, so every one of the 50 states (and the District of Columbia) has the right to set the legal contours for legitimizing a Will or Trust. It is up to the state, to determine the validity of a Will, and state bar associations around America train their lawyers, to craft estate-planning documents in a way that complies with these (often changing) rigors. To encourage inter-state harmony, and legal consistency, states will often adopt “uniform codes.” These uniform laws basically prepare a national template statute on a specific topic; usually topics that affect everyone around America. Since death is common to us all, uniformity on Wills, makes some good sense.
Adoption of the Uniform Electronic Wills Act, on the East Coast
One such uniform code currently being considered by Virginia, is the “Uniform Electronic Wills Act.” Electronic Wills Act – Uniform Law Commission (uniformlaws.org) While most of the mid-Atlantic states have not yet adopted E-Wills as state law in their state houses, the uniform act was enacted in DC in 2022, (introduced by DC Councilman Phil Mendelson) becoming local law effective just last year, in Spring of 2023. Neighboring Virginia has fallen short on adopting the Uniform Electronic Wills Act, as recently as this past legislative session. In the 2024 General Assembly Session, Del. Martinez from Leesburg, introduced House Bill 210, but it failed in the Senate on a 19-20 margin.
But adoption of a national template statute is not the only way states are expanding e-signatures. The trend toward validating e-signatures on estate planning documents is growing, as Pandemic-era emergency measures are being kept by states, for customer convenience, in a digital America.
Pandemic E-Signature Expansions Here to Stay?
One such state to have kept its emergency legislation allowing for “e-execution” of estate planning documents, like Wills and Trusts, is Maryland. While Maryland didn’t explicitly adopt the whole of the Uniform Electronic Wills Act, in Spring of 2022, Governor Hogan did sign Senate Bill 36 into law, which worked as a Pandemic-era provision allowing e-signatures, and remote-document-execution for Maryland Wills and Trusts. 2022 Regular Session – Senate Bill 36 Chapter (maryland.gov) There, Maryland describes the digital permission as “electronic execution” of estate-planning documents and contemplates a lock-down environment where a Maryland resident executes her estate documents in the “electronic presence” of required witnesses and notary.
Some Probate Courts are Holding the Line
California, long known as a legally progressive state, has held the line on ink signatures for trust and estate transactions. While it (along with almost every other state in the union) has adopted the widely used “Uniform Electronic Transactions Act,” (UETA) California rightly has explicitly carved-out Wills and Trusts from the statutory concept of “transaction.” In the recent California case of Trotter v. Van Dyk, issued just this Summer (June 27, 2024, California Fourth District, Division One), the Probate Judge held that email correspondence between a client and her attorney and trustee, was insufficient, for establishing ‘testamentary intent’ and held that UETA is not operative over the crafting of estate planning documents. In other words, a digital exposition of one’s intent, was not sufficient to manifest a testamentary intent. In California’s view, contouring your Will is not like entering into a contract (ie: it is not commercial in nature), which was the premise of the otherwise very permissive Uniform Electronic Transactions Act.
Conclusion
So, with Pandemic-era conveniences hardening into state law, and the ubiquity of digital transactions and digital-interactions about us, keep your eyes peeled for state statutes that affirmatively permit e-signatures as the new-norm for estate planning. Whether it is this year, or next, your Trust & Estate lawyer may soon be offering you even more convenient ways to memorialize your “testamentary intent” over your life’s bounty. Move-over John Hancock: we won’t need those spectacles…just the ability to expand a PDF on our screen.
To learn more about crafting your Will or establishing a Trust, feel free to call us at 703-865-2525. Or find us on-line at www.DominionLawGroup.net, for more information.
Gerarda M. Culipher, Esq. is a member of the Virginia and DC bars. Legal information about cases or statutesof other states in this article should not be construed as providing legal advice or practicing the law of that jurisdiction. For a list of members of the Maryland Bar and California Bars, please see: Maryland Bar Associations | Maryland Courts (state.md.us) and Attorney Search – The State Bar of California
