A last will and testament is an important document; among other things, it dictates the distribution of a deceased person's property to his or her intended beneficiaries. As such, it is important to be sure that a document appearing to be a valid will actually is. Ohio has long had in place statutes about what constitutes a valid will. With the advent of digital technology, however, new questions are arising. Is there a future for electronic wills in Ohio?
First, let's talk about what constitutes a valid will in Ohio. There are four requirements for a valid Ohio will. First, it must be in writing; it must be signed by the person making it (the "testator") or by another person at the testator's direction and in the testator's conscious presence; there must be two competent witnesses; and those witnesses must "attest" and "subscribe" the will.
How this has usually played out is that a will has been written or typed on paper. The testator, using a pen, has signed the actual paper. Witnesses, perhaps employees of the attorney who prepared the will, watched the testator sign it and signed their own names to that effect.
Simple enough. But what does Ohio law say about a witness who may be in the testator's "presence" through the miracle of Skype or Facetime? Is a will "in writing" if it is on a tablet instead of a piece of paper?
Ohio Revised Code section 2107. 03 governs acceptable methods for making wills. Unsurprisingly, it specifies that "in writing" may mean either literally handwritten or typed (when was the last time you saw a will that wasn't typed?). The statute provides some other guidance that might apply to electronic wills, too.
For example, the statute talks about what it means to be "in the testator's conscious presence." This phrase references a person who is signing the will on the testator's behalf, likely because he or she is physically unable to. In that context, the statute specifies that "conscious presence" means within the range of any of the testator's senses, "excluding the sense of sight or sound that is sensed by telephonic, electronic or other distant communication."
While the words in the statute reference signing on behalf of the testator, it is not difficult to imagine that this definition might extend to "witnesses" who were not physically present at a signing, but observed it by electronic means, such as Skype.
Ohio case law also provides some guidance as to how electronic wills might be treated. In a case called In re Estate of Javier Castro, a will was "written" and "signed" via stylus on a Samsung Galaxy tablet. The will was admitted to probate in Lorain County under Ohio's "harmless error" statute; the will did not contain an attestation clause as the law requires. Note that both the testator and the witness hand "signed" the will with a stylus; it is unclear what the outcome would have been if their "signatures" had been typed instead. The Uniform Electronic Transmissions Act (UETA) validates typed signatures on a contract, but specifically excludes wills.
Obviously, electronic and digital technology will continue to develop and become more and more a part of our everyday lives. It only makes sense that the law will continue to evolve to address the role of technology in the making of wills.
A will may be valid if it is made on a tablet. What about on a phone? Will the law regarding witnesses be changed? It is a little too soon to tell. Some of these questions may need to be answered in the courts, given that technology often advances faster than the legislature can keep up with changes.
In the meantime, estate planning might be one area of your life in which it is wise to err on the side of not being too technologically advanced. The point of making a last will and testament, trust, or other estate planning documents is to ensure that your intentions are honored. The best way to do that is to stay on firm legal footing, making your estate plan in such a way that it clearly complies with existing law. When you review your estate plan in a few years, as you should, you can consider updating it according to the laws in place at that time.
If you have questions about electronic wills in Ohio, or estate planning in general, we invite you to contact Gudorf Law Group to schedule a consultation.
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