Under New York’s Electronic Signatures and Records Act, a person can electronically sign many types of documents that have legal significance (Technology Law §§ 301, § 304 |– 306). At the present time, however, wills and trusts are not among them (Technology Law § 307[1]). A legislative proposal that the New York Assembly and Senate recently have passed – but that Governor Kathy Hochul has yet to sign into law – would amend the Estates, Powers and Trusts Law (“EPTL”) to allow for the “execution of electronic wills[,] including attestation, revocation[,] and filing” (a link to the legislative materials that are available on the Assembly’s bill search website can be found here). I now write to provide an update on the legislation, which would take effect 545 days after the Governor signs the legislation into law, if she does so (id.).
If the legislation is signed into law, EPTL § 3-2.1(a) would be amended to provide that that statute applies all wills, except “nuncupative and holographic wills authorized by [EPTL §] 3-2.2 and electronic will[s] authorized by” the legislation (id.). An “electronic will” would be “a will executed electronically in compliance with” EPTL § 3-6.6, and filed with the New York State Unified Court System (the “Court System”) in accordance with EPTL § 3-6.9 (id.).
Under EPTL § 3-6.3, an electronic will would be “a will for all purposes of the law of” New York State (id.). An electronic will would need to “include a disclosure substantially similar to” the one that follows, “in twelve-point font or larger, boldface, double-spaced type”:
CAUTION TO THE TESTATOR: YOUR WILL IS AN IMPORTANT DOCUMENT. AS TESTATOR, YOUR WILL SHOULD REFLECT YOUR FINAL WISHES. TO BE VALID, IT MUST BE SIGNED BY YOU OR ANOTHER INDIVIDUAL AUTHORIZED BY YOU AND WHO IS IN YOUR PHYSICAL PRESENCE AT THE TIME OF SIGNING. IT MUST ALSO BE SIGNED IN YOUR PHYSICAL OR ELECTRONIC PRESENCE BY AT LEAST TWO INDIVIDUALS, EACH OF WHOM IS A DOMICILIARY OF A STATE, AND EACH OF WHOM SIGNS THE WILL WITHIN A THIRTY DAY PERIOD AFTER WITNESSING YOU SIGN THE WILL OR ACKNOWLEDGE THAT YOU SIGNED IT.
WITHIN THIRTY DAYS AFTER THE ELECTRONIC WILL IS EXECUTED, IT MUST BE ELECTRONICALLY FILED WITH THE NEW YORK STATE UNIFIED COURT SYSTEM.
YOU MAY REVOKE YOUR ELECTRONIC WILL AT ANY TIME. YOU MAY DO SO BY EXECUTING A SUBSEQUENT WILL OR SEPARATE WRITING CLEARLY INDICATING YOUR INTENT TO REVOKE ALL OR PART OF YOUR ELECTRONIC WILL, OR BY REQUESTING ITS REMOVAL FROM THE NEW YORK STATE UNIFIED COURT SYSTEM. ONCE YOU HAVE REMOVED YOUR ELECTRONIC WILL FROM THE NEW YORK STATE UNIFIED COURT SYSTEM, IT IS REVOKED (id.).
EPTL § 3-6.6 would codify the statutory formalities that would need to be followed in order to validly execute an electronic will (id.). Those statutory formalities would require that:
- An electronic will is “a record that is readable as text at the signing” of the instrument;
- A testator signs the instrument – or “another individual” does so “in the testator’s name, in the testator’s physical presence[,] and by the testator’s direction, in a manner consistent with [EPTL § 3-2.1(a)(1)(c)]” – subject to certain caveats, including that “[n]o effect shall be given to any matter other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will”; and
- “[I]n the physical or electronic presence of the testator[,] at least two individuals [sign], each of whom is a domiciliary of a state and within a thirty day period after witnessing either (a) the will’s signing, or (b) “the testator’s acknowledgement of the signing of the will . . . or acknowledgment of the will” (id.).
For purposes of the legislation in question, the term “record” would mean “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form” (id.). The term “sign” would mean, “with present intent to authenticate or adopt a record[,] . . . to execute or adopt a tangible symbol; or . . . to affix to or logically associate with the record an electronic symbol or process” (id.). The term “electronic presence” would mean “the relationship of two or more individuals in different locations communicating in real time by electronic means to the same extent as if the individuals were physically present in the same location” (id.). A testator’s intent that a record be the testator’s electronic will could be demonstrated through extrinsic evidence (id.).
EPTL § 3-6.7 would address the revocation of an electronic will (id.). According to EPTL § 3-6.7, an electronic will could be revoked in one of the following manners:
- A “subsequent will that revokes all or part of the electronic will”;
- The “removal of the electronic will from the custody of the [Court System] by” (a) the testator; (b) “another person duly authorized by the testator as proved by at least two witnesses, neither of whom shall be the person removing the electronic will”; or (c) “as otherwise authorized by the [Surrogate’s Court’s uniform rules]”; or
- A “writing of the testator clearly indicating an intention to effect such a revocation or alteration, executed with the formalities prescribed by this article for the execution and attestation of a will” (id.).
Under EPTL § 3-6.7, an electronic will could “be removed from the [Court System’s custody] by order of a court of competent jurisdiction” (id.). However, if a court-ordered removal occurred during a testator’s lifetime, it would “not be deemed a revocation of the electronic will” (id.).
EPTL § 3-6.8 would provide that an electronic will could be “simultaneously executed, attested, and made self-proving by acknowledgement of the testator and affidavits of the witnesses” (id.). To satisfy EPTL § 3-6.8, the acknowledgement and affidavits would need to be: (a) “made before and in the physical or electronic presence of an officer authorized to administer oaths under [the] law of the state in which the officer is located”; and (b) “evidenced by the officer’s certificate under official seal affixed to or logically associated with the electronic will” (id.). In addition, the acknowledgment and affidavits would need to “conform with” Surrogate’s Court Procedure Act § 1406, and “indicate that the will was signed electronically” (id.). A “signature physically or electronically affixed to an affidavit that is affixed to or logically associated with an electronic will [would be] deemed a signature of the electronic will” (id.).
EPTL § 3-6.9 would require that, “[w]ithin thirty days of its execution, an electronic will [would] be electronically filed with the [Court System] by either the testator or another person duly authorized by the testator” (id.). “The failure to timely file an electronic will with the [Court System would] result in the unfiled electronic will being deemed invalid” (id.).
It remains to be seen whether Governor Hochul will sign the electronic wills legislation into law. However, if the Governor signs the legislation into law, the legislation will require careful attention from, and analysis by, attorneys in order to ensure that testators sign valid electronic wills.
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