In 2018, the Arizona legislature enacted an overhaul of a portion of the Arizona Probate Code: Title 14, Chapter 2, Article 5 of the Arizona Revised Statutes. That portion of the code governs creation of a Last Will and Testament. The Arizona probate code now allows for electronic wills, making Arizona only the third state in the country to do so.
In 2019, Florida also adopted electronic will statutes. Arizona’s version became effective June 30, 2019.
With emerging technologies, to some, the age-old method of “paper” wills has become archaic. Wills created and stored electronically have already made their way into various state probate courts.
In Taylor v. Holt, 134 S.W.3d 830 (Tenn. 2003), the testator typed his signature in a cursive font at the end of the electronic text of his will and then printed the will. Two witnesses watched him type the signature on the will, and then they signed the printed copy of the will. The court found it to be valid.
In a more recent Ohio case, In re Estate of Javier Castro, Case No. 2013ES00140, Court of Common Pleas Probate Division, Lorain County, Ohio (June 19, 2013), the testator dictated a will to his brother, who wrote the will with a stylus on a Samsung Galaxy Tablet. The testator then signed the will on the tablet, using the stylus, as did the two witnesses. Again, valid.
And, finally, shortly before his death by suicide, a 21-year-old man hand wrote a journal entry stating that a document titled “Last Note” was on his phone. The journal entry provided instructions for accessing the note, and he left the journal and phone in his room. On the phone, the “last note” made apologies and provided for distribution of his assets. It too was found to be valid. In re Estate of Horton, 925 N.W. 2d 207 (Mich. 2018).
Arizona House Bill 2471 was introduced to provide amendments and additions to the existing statutes to include the validity of electronic wills, subject to certain prerequisites. An electronic will means a testamentary instrument that is executed and maintained on an electronic medium and that is executed in compliance with Section 14-2518. It sounds pretty simple until you look at the new Section 14-2518 which lays out the many requirements for a valid electronic will in Arizona.
Requirements for a valid electronic will in Arizona.
To be valid, an electronic will must:
- Be created and maintained in an electronic record.
- Contain the electronic signature of the testator or the testator’s electronic signature made by some other individual in the testator’s conscious presence and by the testator’s direction.
- Contain the electronic signatures of at least two persons, each of whom met both of the following requirements: (a) Was physically present with the testator when the testator electronically signed the will, acknowledged the testator’s signature or acknowledged the will. (b) Electronically signed the will within a reasonable time after the person witnessed the testator signing the will, acknowledging the testator’s signature or acknowledging the will as described in subdivision (a) of this paragraph.
- State the date that the testator and each of the witnesses electronically signed the will.
- Contain a copy of a government-issued identification card of the testator that was current at the time of execution of the will.
Breaking down the requirements, an “electronic record” is defined as a record that is created, generated, sent, communicated, received or stored by electronic means. An “electronic signature” means an electronic method or process that through the application of a security procedure allow a determination that the electronic signature at the time it was executed was all of the following:
- Unique to the person using it.
- Capable of verification.
- Under the sole control of the person using it.
- Linked to the electronic document to which it relates in a manner so that if the document is changed the electronic signature in invalidated.
The statutes also provide for a self-proved electronic will. (A self-proved will generally does not require the testimony of a witness to prove its genuineness at the time that it is submitted for probate.) Besides the requirements found in Section 14-2504 which applies to paper wills, an electronic will requires the “electronic signature and electronic seal” of a notary public (House Bill 2178 passed in the same session authorized notaries to use electronic signatures and seals); designation of a “qualified custodian” to maintain custody of the electronic will; and must be under the exclusive control of the qualified custodian at all times before being offered for probate. The statutes go on to identify who can serve as a “qualified custodian,” as well as what must be stored.
Specifically, A.R.S. § 14-2520 provides that
A qualified custodian of an electronic will:
- May not be related to the testator by blood, marriage or adoption.
- May not be a devisee under the electronic will or related by blood, marriage or adoption to a devisee under the electronic will.
- Shall consistently employ and store electronic records of electronic wills in a system that protects electronic records from destruction, alteration or unauthorized access and detects any change to an electronic record.
- Shall store in the electronic record of an electronic will each of the following: (a) A photograph or other visual record of the testator and the attesting witnesses that was taken contemporaneously with the execution of the electronic will.(b) A photocopy, photograph, facsimile or other visual record of any documentation that was taken contemporaneously with the execution of the electronic will and provides satisfactory evidence of the identities of the testator and the attesting witnesses, including documentation of the methods of identification used.(c) 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 electronic will.
- Shall provide to any court that is hearing a matter involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualifications of the qualified custodian and the policies and practices of the qualified custodian concerning the maintenance, storage and production of electronic wills and may be called by an interested party to serve as a fact witness regarding the maintenance, storage and production of electronic wills.
More questions than answers?
At this time, there are perhaps more questions than answers. How does one go about obtaining a unique signature capable of verification and under the sole control of the person using it that needs to be linked to the electronic document to which it relates in a manner so that if the document is changed the electronic signature is invalidated? If not a self-proving electronic will, how can a probate court know the electronic will submitted was actually created by the testator and not an impostor – someone else wanting to subvert the wishes of the decedent? And, if a self-proving electronic will, where can someone find a qualified custodian with the technical capability to handle the statutory requirements?
Certainly, these questions along with many others may be answered when Arizona citizens start presenting electronic wills to the probate courts. For now, the big beneficiaries of these statutes appear to be the on-line will preparation companies.
In July, 2019, the National Conference of Commissioners on Uniform State Laws approved and recommended the Uniform Electronic Wills Act. This Act differs from Arizona’s statutes in several aspects, including definitions and execution requirements. The Uniform Act does not provide for a “qualified custodian.” In the past, Arizona has adopted several uniform Acts. Berk Law Group will continue to monitor this to see if there are any other changes to the law.
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By Dean E. Brekke, Esq., Attorney, Berk Law Group, P.C., Scottsdale, Arizona