Tuesday, August 4, 2020

Posted by: Trey Woodall & Macayla Heath on Aug 3, 2020

Modern circumstances necessitate electronic wills legislation in Tennessee. The recent coronavirus pandemic (COVID-19) exposed deficiencies in Tennessee’s estate planning laws. In early 2020, the pandemic struck more than 10 Tennessee nursing homes,[1] distancing residents from legal services. Residents in one Gallatin nursing home faced indescribable fear as positive test results lead to the loss of life for some and evacuation to local hospitals for others.[2] Had any of these residents tried to create or revise a will, they would have had to do so in the physical presence of other people serving as witnesses. This requirement risks exposing those residents and others to viruses like COVID-19.

Nobody could have anticipated the damage COVID-19 is causing our society. But our laws should be capable of adapting to emergencies like it before they emerge. The nursing home residents described above experienced a more severe version of the same barrier to legal services immunocompromised and elderly individuals have faced for decades. Accordingly, the Tennessee General Assembly should pass legislation recognizing electronic wills and the remote execution of them by electronic presence of the testator and witnesses.[3] Passing such legislation would expand the options for Tennesseans seeking estate planning services, while still protecting the integrity and security of their wills. Part I of this article describes what electronic wills are, and it identifies some additional considerations for their recognition. In Part II, we compare Tennessee’s laws regarding electronic wills to those existing in other states. The advantages and disadvantages of modernizing the estate planning practice through electronic wills legislation are discussed in Part III. Finally, we contend in Part IV that electronic wills legislation is necessary in Tennessee, and we propose solutions to the perceived disadvantages of other states’ approaches.

I. Defining 'Electronic Will'

The legal community does not have a uniform definition of “electronic will.”[4] This is understandable because the concept is relatively new, and jurisdictions have taken a variety of approaches to deal with it. This article uses the term “electronic will” to describe the will itself in electronic format. In discussing electronic wills legislation, we refer to a body of laws regarding electronic wills that addresses more than just the document’s electronic format.

An electronic will is simply a will created and executed in an electronic or digital format. This type of will would often be created using a computer-based word processing program, and it could be signed using a typed signature, copied and pasted signature, or click-to-sign function. Beyond the actual format of the will, several other considerations are necessary. At the very least, jurisdictions should consider criteria for creation, execution, storage and revocation.

II. Electronic Wills: The Estate Planning Modernization Trend

In Tennessee, a will may be created and signed by the testator in electronic format. Tennessee Code Annotated Section 32-1-104 requires that an executed will bear the signatures of the testator and at least two witnesses.[5] This requirement was interpreted in Taylor v. Holt to be met in part by wills made and signed by the testator electronically.[6] In Taylor, the testator drafted on his computer a one-page document intended to be his will.[7] At the bottom of the document, he included a “computer generated version of his signature.”[8] After printing the document, two witnesses then signed their names and dated it in the presence of each other and the testator.[9] Despite the testator’s sister alleging the will was invalidly executed, the trial court granted summary judgement for the testator’s girlfriend (who defended the will’s validity).[10] The Tennessee Court of Appeals affirmed the trial court’s decision, finding that the testator validly signed the will on his computer.[11] However, neither the Tennessee Code nor Tennessee case law allows a testator to execute a will entirely in electronic format. At best, the court’s opinion demonstrates a broad interpretation as to what constitutes a signing.

In terms of presence during execution, Tennessee stands with most jurisdictions by requiring that wills be executed in the physical presence of the testator and witnesses. In addition to requiring signatures, Section 32-1-104 requires the testator and witnesses sign or acknowledge signatures already made in the physical presence of each other.[12] In In Re Estate of Ross, the Tennessee Court of Appeals explained that a will executed in close physical proximity and within the line of sight of the witnesses will generally meet the “presence” requirement.[13] Consistent with this execution requirement, estate planning attorneys coordinate in-person meetings between their clients and at least two witnesses.

A national trend toward embracing electronic wills legislation is developing. Naturally, new developments in technology spark academic discussion of its utility in estate planning. But the conversation surrounding electronic wills is shifting from academic to practical. In 2019, the Uniform Law Commission (ULC) recommended states adopt its Uniform Electronic Wills Act.[14] Significantly, several states have already considered electronic wills legislation, and some states have enacted their own versions.

The Uniform Electronic Wills Act is model legislation approved by the ULC to assist states in passing electronic wills legislation.15 Under the Act, an electronic will is one created using “technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.”[16] After drafting the will, it may be executed in the physical presence of the testator and witnesses or notary public.[17] The Act also provides for an optional method of execution through remote or “electronic presence” of the testator and witnesses or notary public in real-time, audio-video communication.[18] However, a will executed remotely may only be self-proving if it is notarized.[19] Additionally, the Act generally recommends that states recognize an electronic will that was validly executed in another state.[20] Finally, a testator may revoke her electronic will under the Act by executing a subsequent will or by physical act (e.g., intentionally using the “delete or trash function on a computer” or “smashing a flash drive with a hammer,” but generally not by sending an email saying “I revoke my will.”).[21]

Other states enacting electronic wills legislation have taken various approaches. Florida formally recognized electronic wills in 2019.[22] Other critical estate planning documents such as testamentary trusts, powers of attorney, health care advance directives, and waivers of spousal rights can also be made electronically.[23] Florida’s laws recognize remote or “electronic presence” of the testator and witnesses or notary using live-feed videoconferencing technology as an alternative to physical presence.[24] Interestingly, Florida attempts to protect vulnerable adults from fraud by excluding them entirely from using the remote or “electronic presence” execution procedure.[25] Some speculate this protective exclusion could invite litigation.[26] This is because a testator using electronic presence must be able to self-identify as vulnerable in response to questions that she must be asked during the process.[27] To be self-proving, a will must designate and must be in the custody of a qualified custodian.[28] Finally, a testator may revoke an electronic will himself or in the presence of another at her direction “by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose of revocation.”[29]

Three other states have modernized estate planning through electronic wills legislation. Nevada achieved some modernization significantly earlier than other states. Nevada first recognized electronic wills in 2001, and it established remote execution in later legislation.[30] Like Florida’s revocation provision, a testator’s electronic will in Nevada may be revoked by a subsequent will or codicil or by “cancelling, rendering unreadable or obliterating the will with the intention of revoking it.”[31] But the majority of practitioners still favor traditional wills because of the requirements imposed on electronic ones.[32] For example, an electronic will created there may only be self-proving if it is placed in the custody of a designated, qualified custodian.[33]

More recently, Arizona and Indiana each recognized electronic wills. For a will to be self-proving in Arizona, it must be notarized, designate a custodian, and be “under the exclusive control of a qualified custodian at all times.”[34] Arizona’s revocation provision does not appear to specifically address electronic wills, but the typical revocation by subsequent will or physical act would likely still apply.[35] Unlike Florida and Arizona, Indiana does not appear to require a custodian for an electronic will to be self-proving.[36] Instead, Indiana created a state registry that individuals can file their documents with.[37] Indiana provides multiple methods of revocation, including: permanent deletion or destruction of the electronic record held by the testator, instructing a custodian of the document to do the same, and subsequent execution of a new will or codicil.[38] Both Arizona and Indiana still require the physical presence of the testator and witnesses for the signing.[39]

Other states that have considered electronic wills legislation, such as California, New Hampshire, Virginia and the District of Columbia, have not yet succeeded in enacting it.[40] Although the list of states recognizing electronic wills is small, it is expected to grow as technology continues to encroach on jurisdictions’ traditional estate planning laws. And, occasionally, rapid changes in societal conditions may place our way of life and the law squarely at odds with each other.

In early 2020, Tennessee and several other states responded to COVID-19’s impact by temporarily suspending physical presence requirements for the witnessing of certain documents. In effect, these measures created a limited time-frame for testators to execute wills remotely through electronic presence. On April 9, 2020, Gov. Bill Lee issued Executive Order 26 that temporarily suspended numerous laws requiring the in-person notarization and witnessing of legal documents.[41] The order required “real-time audio and visual communication”; the Signatory, notary public and witnesses must be physically located in Tennessee while communicating electronically; specific identification of the Signatory and the document; reference to Executive Order 26; and memorialization through the use of counterparts or subsequent notarization or witnessing.[42] The order did not provide a way to create electronic wills, so execution would presumably be achieved through paper counterparts.[43] Gov. Lee has twice extended the substance of Executive Order 26, providing for its protections until Aug. 29, 2020.[44] (See "Remote Signing: One Way to Implement Executive Order 52," by Charles Key.) A non-exhaustive list of states similarly permitting temporary remote witnessing through electronic presence include: Alabama, Arkansas, Connecticut, Kansas, Maine, Michigan and New York.[45]

States across the country are more openly considering electronic wills legislation. Within this trend, the number of states favoring and disfavoring remote execution through electronic presence appear to be split. However, it is uncertain how long physical presence requirements will hold favor. Technological developments place increasing pressure on our profession to provide modern legal services.[46]

III. Advantages and Disadvantages of Electronic Wills Legislation

On April 1, 2020, the Tennessee Supreme Court held its first-ever oral argument via video conference. This demonstrated the court’s commitment to finding “innovative and creative ways to continue to conduct essential court business across the state.”[47] Oral argument proceeded smoothly, showing that technology can be effectively used as an alternative when needed.[48] The court’s success begs the question, “why do our wills laws deter the use of technology?”

The discussion regarding electronic wills legislation is polarized, emphasizing the advantages and disadvantages of modernizing the estate planning practice. Proponents of electronic wills legislation largely favor the use of technology.[49] To them, technology creates additional flexibility in how people can memorialize their testamentary wishes, and it provides a more efficient way for that to be accomplished. However, opponents are concerned about the process’s security, potential fraud against clients, and large technology companies taking too much market share.[50]

Electronic wills legislation can improve access to legal services and make the process of providing them more efficient. First, legislation incorporating electronic presence can allow homebound clients to access legal services. By themselves or with the assistance of a family member or caretaker, they could safely execute a will remotely through video conference. Second, it can reduce the amount of time attorneys spend printing, preparing and maintaining paper copies. If the process could be streamlined, the benefits could be shared with clients in the form of reduced fees or a less time-consuming process.[51]

To others, the potential costs of electronic wills legislation are too much to stomach. One concern is that large technology companies will flood the legal market with more affordable consultation and document generation, putting Tennessee attorneys out of business. Currently, online legal service platforms like LegalZoom and Willing generate generic documents based on responses to questions. These platforms do not heavily compete with local estate planning services because the testamentary documents cannot be executed through their online services. However, electronic wills laws including electronic presence could allow these services to take a larger share of the estate planning service market in Tennessee. While nobody knows how big of a share tech companies can take, there has been some legislative interest in regulating them by requiring a Tennessee-licensed attorney to review the documents they produce for clients instate.[52]

Electronic wills legislation also poses unique security risks. The use of videoconferencing presents a risk of unwanted third parties overhearing the conversation. Recently, the videoconferencing platform Zoom experienced unauthorized connections and data breaches.[53] Sensitive data could be taken from the communications made to execute a will or taken from the will itself. More likely, an eavesdropper could be lurking beyond the camera’s view, raising concerns about confidentiality and the attorney-client privilege. These are valid concerns, considering the traditional paper copy and physical presence requirements are more secure.

Some less tech-savvy adults could also be targeted for fraud and undue influence. Face-to- face meetings provide a better opportunity to observe verbal and non-verbal cues indicating a lack of competency or the existence of undue influence. Videoconferencing could make that more difficult, potentially resulting in more vulnerable people being scammed online.[54]

Tech takeovers, security breaches and fraud are serious concerns a jurisdiction should weigh when considering electronic wills legislation. To provide the benefits expressed by proponents, the legislation must sufficiently control those risks.

IV. Tennessee Needs Electronic Wills Legislation Including Remote Execution

The Tennessee General Assembly should consider electronic wills legislation utilizing remote execution by electronic presence to achieve two objectives: (1) to mitigate potential litigation of wills executed pursuant to Executive Orders 26, 37 and 52; and (2) to preserve the well-being of more vulnerable Tennesseans trying to create estate plans. Such an approach could harness widely available videoconferencing technology while also respecting the risks associated with using it. To strike an appropriate balance, the legislation should respect the commonalities in approaches taken by other jurisdictions while also adjusting for their perceived deficiencies.

First, the legislation should retroactively validate wills made pursuant to Executive Orders 26, 37, and 52 to reduce the costly litigation that may plague them. Whether Gov. Lee exceeded the scope of his authority with respect to this order is unclear. He made that decision amid a crisis we have not faced before. We also do not know how many wills were made pursuant to the order. Without legislative intervention, practitioners must use the dreaded “wait and see” approach to see whether the issue of those wills’ validity reaches the courts. One thing is clear among this uncertainty: wills executed according to the Tennessee Code are more likely to be valid than those that are not. The General Assembly should relieve attorneys and their clients of that uncertainty by expressly validating the wills made during the duration of the orders.

Second, the legislation should recognize electronic wills and electronic presence. As discussed in Part II, jurisdictions take different approaches to electronic wills legislation. Because electronic wills are underutilized in some jurisdictions and are brand new to others, the merits of any given set of laws is currently unclear. Accordingly, we cannot couple our conclusion that electronic wills legislation is necessary with a curated approach designed to reach the best outcome. Starting with the ULC’s model legislation and tailoring it to Tennessee’s unique needs is likely the most prudent approach. But we do address two potential downfalls of other states’ strategies, and we offer ways to avoid making similar mistakes in Tennessee.

Electronic wills and electronic presence provide a safe and convenient way for immunocompromised and elderly testators to make a will. By medical recommendation or disability, these individuals are more likely to be homebound or to avoid contact with others. An additional method of executing wills could provide these individuals with a valuable alternative to traditional wills. It is true that some of these people may not be able to utilize the available technology on their own. But the option could give some of those individuals more flexibility in choosing an estate plan with the help of family or a caretaker.[55] As a result, electronic wills with electronic presence should be enacted if the risks of using it can be managed.

So far, states’ attempts to solve problems associated with electronic wills legislation have created new ones. For example, Florida’s exclusion of vulnerable adults from using electronic presence will probably lead to more litigation of wills executed that way.[56] People who would otherwise need electronic presence may not obtain estate planning services because of uncertainty about their eligibility. A state trying to achieve similar protections of vulnerable people could require licensed attorney supervision throughout the execution process. This might also exclude some individuals from using electronic presence, but it offers three advantages. First, an attorney would be better equipped to halt a will’s execution influenced by incompetency, fraud or duress. Attorney supervision also draws a more black and white line between who is eligible to use electronic presence and who is not. Also, attorney supervision would help to ensure the will execution requirements are satisfied.

In terms of storage, complicated requirements that wills be kept with a qualified custodian could be simplified by requiring the electronic will be immediately filed with a probate court after execution. Even probate courts in rural counties could record them in paper form if they were received with an accompanying affidavit that the file’s contents are as they were executed. File formatting requirements could also be implemented to limit the storage of the final version in a format that is relatively unalterable.

Electronic wills legislation will soon make its appearance in the General Assembly. It may be proposed proactively to mitigate the harmful effects of future pandemics on more vulnerable Tennesseans. Or it may be proposed reactively in response to a future societal crisis. We conclude that the best approach is to proactively consider electronic wills legislation incorporating electronic presence. Debating this controversial topic early will give us the best opportunity to craft meaningful legislation.

Although there are risks associated with electronic wills legislation, there are certainly advantages for those willing to stomach those risks. As is evident from trends in Nevada, practitioners in states with electronic wills legislation still favor the traditional approach. Such a trend demonstrates that just because the law permits a certain course of action does not mean it is the best option for everyone. For some clients, creating an electronic will is a risk not outweighed by its convenience. For others, it might be the safest option they have. Thus, punting the consideration of electronic wills legislation any further is a gamble considering COVID-19 reminded us that we rarely control which cards we are dealt. Gov. Lee’s all-in bet on technology in a crisis shows that our executive branch is at least decisive — will the General Assembly call or will it fold?

NOTES

1. Adam Tamburin, "At least 10 assisted living facilities in Tennessee have reported COVID-19 outbreaks," Tennessean (Apr. 10, 2020, 2:36 PM), https://www.tennessean.com/story/news/2020/04/10/coronavirus-tennesseeleast-10-nursing-homes-report-covid-19/5132059002/ [https://perma.cc/P5YJ-RPNJ].

2. Holly Meyer, "Gallatin nursing home hot spot for fast-spreading COVID-19 outbreak in Tennessee," Tennessean (Mar. 30, 2020, 1:55 PM), https://www.tennessean.com/story/news/local/2020/03/30/gallatin-nursing-homepatients-coronavirus/5087098002/ [https://perma.cc/M9RT-H6ST].

3. Whether more complex estate planning matters, like trusts, should also become electronic is beyond the scope of this article.

4. See Chapter Four, "What Is an "Electronic Will?", 131 Harv. L. Rev. 1790, 1791 (2018) [hereinafter Chapter Four].

5. Tenn. Code Ann. § 32-1-104(a).

6. Taylor v. Holt, 134 S.W.3d 830, 830 (Tenn. Ct. App. 2003).

7. Id.

8. Id.

9. Id. at 830-31.

10. Id. at 831.

11. Id. at 834.

12. Tenn. Code Ann. § 32-1-104(a)(1)-(2).

13. In re Estate of Ross, 969 S.W.2d 398, 401 (Tenn. Ct. App. 1997).

14. Unif. Elec. Wills Act (Unif. Law Comm’n 2019), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=8529b916-8ede-67e4-68eb-e0f7b1cb6528&forceDialog=0 [https://perma.cc/49JY-5JQW].

15. See Id., prefatory note at 2.

16. § 2(1).

17. § 5(a)(3).

18. Id.

19. § 8, cmt. at 18.

20. § 4 (recommending states recognize these wills where the testator was physically present at the time of execution or where the testator is domiciled or resides when signed or at death).

21. § 7, cmt. at 13-14.

22. Sarah S. Butters & Jenna G. Rubin, "Danger Will Robinson: The New Frontier of Remote Online Notarization and Electronic Wills," Fla. B.J., November/December 2019, at 31.

23. Id. at 32.

24. Id.

25. Id. at 33.

26. See Id. at 34 (“Still, without a doubt, electronic wills will be challenged regularly on the grounds that the principal was a vulnerable adult.”).

27. Id. at 33-34.

28. Id. at 33.

29. Fla. Stat. Ann. § 732.506.

30. John M. Challis, "Electronic Wills in Missouri: The Future Is Now," 75 J. Mo. B. 278, 279 (2019) (quoting Nev. Rev. Stat. § 133.088(1)(a)(2) (2017)).

31. Nev. Rev. Stat. Ann. § 133.120.

32. Dan DeNicuolo, "The Future of Electronic Wills," American Bar Association (June 1, 2017) https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue-5--june-2017/the-future-ofelectronic-wills/ [https://perma.cc/R2RZ-QNZD].

33. Nev. Rev. Stat. Ann. § 133.086.

34. Ariz. Rev. Stat. Ann. § 14-2519.

35. See § 14-2507.

36. Ind. Code Ann. § 29-1-21-4.

37. See Id. § 29-1-21-15.

38. Id. § 29-1-21-8.

39. Challis, supra note 30, at 280.

40. Id.; see DeNicuolo, supra note 32.

41. https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee26.pdf [https://perma.cc/ZQR4-TV3D].

42. Id.; see also Newman Bankston, "How to Witness and Notarize Documents While Social Distancing, 56-May Tenn. B.J. 5 (2020) https://www.tba.org/?pg=TennesseeBarJournal&pubAction=viewIssue&pubIssueID=7591&pubIssueItemID=3965 [https://perma.cc/76YP-AM67].

43. Id.

44. https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee37.pdf [https://perma.cc/B3VP-AMCX]; https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee52.pdf [https://perma.cc/7UKF-6PLL].

45. "Emergency Remote Notarization and Witnessing Orders," The American College of Trust and Estate Counsel, https://www.actec.org/resources/emergency-remote-notarization-and-witnessing-orders/ [https://perma.cc/A4DFUV6Y] (April 16, 2020), [https://perma.cc/L8ZF-8VP4] (June 29, 2020).

46. See Turney P. Berry & Suzanne Brown Walsh, "Ready or Not, Here They Come: Electronic Wills Are Coming to a Probate Court Near You," Prob. & Prop., September/October 2019, at 62 (“A society that banks online, shops online and communicates online also expects to find legal services online, and a body of law that prevents the execution of an electronic will is increasingly viewed as anachronistic.”).

47. "Tennessee Supreme Court to Make History: First Oral Argument by Video Conference," Tennessee Administrative Office of the Courts, http://www.tncourts.gov/press/2020/03/30/tennessee-supreme-court-make-history-first-oralargument-video-conference [https://perma.cc/V9EA-JXWK].

48. See https://aoc.streamingvideo.tn.gov/Mediasite/Play/56d8b6405f4947f39a0c2f54bfe089df1d.

49. See Berry & Walsh, supra note 46, at 63.

50. See Id.; see also Chapter Four, supra note 4, at 1811.

51. Many individuals choose not to create a will or estate plan because of the costs of creating one or the inconvenience it places on them. See Cori A. Robinson, "Electronic Wills: Are These the Wills You’re Looking For?," Above the Law (Dec. 17, 2019, 12:44 PM), https://abovethelaw.com/2019/12/electronic-wills-are-these-the-wills-youre-looking-for/ [https://perma.cc/7XQ4-EQ5Y].

52. See H.B. 1411, 111th Gen. Assemb., Reg. Sess. (TN 2019).

53. Zoom has since resolved the issue, but many users still lack confidence in the platform’s ability to protect the consumers’ information and access. See Kate O’Flaherty, "Zoom Security: Here’s What Zoom Is Doing To Make its Service Safer," Forbes https://www.forbes.com/sites/kateoflahertyuk/2020/04/10/zoom-security-heres-what-zoom-isdoing-to-make-its-service-safer/#4b45aec730fc [https://perma.cc/3AE4-VJR6].

54. See Executive Council Meeting Agenda, White Paper on Proposed Enactment of the Florida Electronic Wills Act, Real Property, Probate and Trust Law Section of The Florida Bar, pp. 40-56 https://rpptl.org/uploads/RPPTLAgenda-February-25-2017-February-15th--FINAL-022317.pdf [https://perma.cc/C5DQ-XVGH].

55. See text accompanying note 50.

56. Butters & Rubin, supra note 22, at 34.

Charles Key

TREY WOODALL graduated from Belmont University College of Law in the Class of 2020, and he is interested in exploring ways technology can enhance the quality of legal representation in Tennessee. He will be clerking for the Hon. John Everett Williams, Tennessee Court of Criminal Appeals, starting August 2020. Afterward, he expects to practice criminal law with a specialization in appeals. He can be contacted at treyhwoodall@gmail.com.

MACAYLA HEATH graduated from Belmont University College of Law in the Class of 2020. Her interest in the legislative process began in 2017 during her work with the House of Representatives, and it evolved during her 2019 internship with the Tennessee Bar Association’s Government Relations division. She is pursuing employment in estate planning, government relations and transactional law. She can be contacted at macayla.heath17@gmail.com.

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