Did the Pandemic Create Pandemonium for Estate Planning?

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The Electronic Wills Act

Most industries have experienced a downturn during the COVID-19 pandemic; however, one industry that has survived is estate planning. During these uncertain and frightening times, an increase of people are rushing to estate planning attorneys as they realize the reality of what a tragic pandemic can result in and how important it is to have their estate planning in place.

Estate planning attorneys had to get creative during the pandemic to ensure their client’s needs were met and the mandates adhered to; in-person signing ceremonies emerged to ensure that plans were validly executed, including witnessing from opposite ends of a large conference table, witnessing signings through windows, and signing from six feet away, stepping back six feet while witnesses sign with their own pens, and retrieving documents only after witnesses have, in turn, stepped back six feet.

Beginning in January 1, 2022 in Washington state a new law will be enacted changing the requirements, formalities and long-standing traditions for signing a Will; the Uniform Electronic Will Act (“Act”).

The Act and will permit testators (the person signing the Will) to sign an electronic will and allows probate courts to accept electronic wills as valid. The Act retains core formalities of writing, signature and attestation, but makes them executable electronically. An electronic will must be:

  • a record that is readable as text at the time of signing;
  • signed by the testator or another individual in the testator's name, in the testator's physical presence, and by the testator's direction; and
  • signed by at least two competent witnesses at the testator's direction or request and in the physical or electronic presence of the testator.

This is an unexpected and major change in estate planning and consequently raises many

concerns among elder law, estate planning and probate attorneys. Particularly the surge in Will contests and ensuing litigation that will result from the Act. When a will is prepared and executed electronically, especially when a lawyer is not present, this will open the floodgates for disgruntled heirs to claim undue influence, duress, coercion, and lack of capacity. The Act will encourage testators to create wills without proper legal advice, oversight and forethought about what happens when the testator dies and what tax ramifications may ensue. The Act undoubtedly will create issues related to storage of electronic wills, confidentiality, and cyber security.

As with most newly enacted laws there will be uncertainties, pitfalls and lawsuits to create caselaw interpreting the law. This Act is a law you do not want to be a test-run for. Consult an experienced estate planning attorney before experimenting with an electronic will, after all, a will is one of the most important documents you will sign in your lifetime, don’t leave it to chance.