Are Electronic Wills 2G2BT? Estate Planning in the Digital Age

Terry Jessop & Bitner Newsletter

Issue 29, January 2016

As our world rolls forward with one technological advancement after another, the old is often quickly eclipsed by the new. Handwritten letters, which cost money to send and take forever to arrive, have been largely replaced by email, blogs, texts, posts, and tweets, all of which are instantaneous and essentially free. Contracts can be digitally signed. Credit card and utility companies send their bills electronically and expect their customers to pay online. Where once only a phone call was possible, we now use video conferencing around the world. Despite these advancements (or perhaps because of them), today's cutting-edge tech becomes antiquated in a few short years or even months. It is easy to feel left behind in the scramble to stay current in the digital age.

Technology has placed tons of information at our fingertips, leading many to become do-it-yourselfers, from car repair to home makeovers, to starting and running a business. You may feel pressed to take advantage of this abundance of knowledge and new technology with your estate planning. Whether for convenience, frugality, or simply because pen and paper may seem so outdated, you may be tempted to send your last wishes via text, email, or perhaps by publishing a blog, with the idea of creating an electronic will. If you want your will to be enforceable, don't do it. Failure to abide by the legal requirements for creating a will may result in the invalidation of the will and the distribution of your estate contrary to your wishes, no matter how widely disseminated online.

Tradition, Tradition, FCOL!

The law continues to cling to centuries-old tradition when it comes to making a will. While the day may come when the law recognizes electronic wills, we're not there yet. Only one state has passed legislation authorizing electronic wills, primarily to address the growing fad of video wills. Utah has no such law, nor have our courts addressed the issue of texts or emails, for example, as valid forms of a will. Should you be considering preparing your own will by typing an email and sending it off to your family, or even more concisely, through a text (or, heaven forbid, a tweet), your efforts will be in vain. Under Utah law, a will must be in writing, signed by the person making it, as well as by two witnesses. While an email or text fulfills the writing requirement, it fails the "signed" and "witnessed" requirements.

There are exceptions to these rules. First, one may forego the witness requirement if the will is handwritten and signed by the person who created it. Second, should there be some defect in the will, such as not being witnessed, it may still qualify for probate if it can be shown that it was intended to be that person's will, however, the burden of proof is substantial and may be difficult to overcome. Neither of these exceptions will be helpful if your will is just an email or a text.

RUOK?

Your estate, which you've worked you entire life to put together, and your family, your most important asset, deserve your fullest attention when planning for the future. For their sakes, don't text your will. If you are considering a will, seek out appropriate legal advice to ensure all the necessary requirements are met. We can help.

© Terry Jessop & Bitner January 2016