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August 1, 2017
Is the age of e-wills nearly upon us?

Gov. Scott vetoes an e-wills bill opposed by RPPTL Section

By Gary Blankenship
Senior Editor

In an age of e-everything, should the drafting and execution of wills be an online activity where the documents can be drafted and signed electronically with the verifying witnesses viewing the signature from a remote location?

The Florida Legislature and Willing.com, a startup company pushing online wills, say yes. The Real Property, Probate and Trust Law Section and, perhaps most importantly, Gov. Rick Scott, say no.

The Legislature in May passed HB 277, the Florida Electronic Wills Act, which allows the electronic execution of wills, including that the testator can be in one location and the witnesses and attorney or notary can be in another — as long as they are linked by video and a recording is made.

The section, although it managed to get changes made to the initial legislation, continually opposed the measure and, on June 26, Scott vetoed the bill.

Deborah Goodall “We had a couple main areas of concern,” said Deborah Goodall, immediate past chair of RPPTL who led the opposition to the bill. “We are concerned about protecting the citizens of the state of Florida and didn’t really see there was a crisis the legislation was seeking to address.

“The lower cost for estate planning is already available online. The only difference is you would have to have the witness and notary physically present,” she added. “We were concerned about protecting Florida’s vulnerable citizens where there wasn’t someone in the room.”

For Sen. Kathleen Passidomo, R-Naples, who sponsored the Senate version of the legislation, there’s a need for such a bill.

“Right now, there’s no real prohibition against the creation of an electronic will,” she said. “But there’s no legislative authorization either. What this bill did is create the framework for the creation, execution, and storage of an electronic will, so it doesn’t necessarily have to be on paper, signed in ink, and then put in a vault somewhere.

Sen. Kathleen Passidomo “It has created consternation amongst some of the estate-planning attorneys, but I believe most of that consternation comes from the concerns about changes in their practices. . . . I honestly believe much of it is just fear of change.”

The bill allowed the creation of an electronic will that can be signed by the client in the presence of two witnesses, but permitted that presence to be via a live, secure video link. An attorney or notary must also be present, although that can also be by video link. Video conferences must be recorded, time stamped, and stored with the electronic will.

The testator must verify that he or she is over 18, not being influenced by anyone else, is not under the influence of drugs or alcohol, and is signing the document voluntarily.

The wills and recordings must be stored with a “qualified custodian,” which can be an individual or a corporation but cannot be a fiduciary or beneficiary of the will. The custodian must be in Florida and be able to protect the electronic records from alteration or destruction and be able to furnish the court with an accurate copy of the will.

According to its website, Willing.com plans to be a qualified custodian and provide witnesses and the attorney or notary required under the law and provide do-it-yourself help for those seeking wills.

Goodall said the section had too many questions, even after Passidomo and Rep. James Grant, R-Tampa, the House sponsor, made several changes to address section concerns. Those reservations included that someone might be in the room but out of sight from the camera, if the client is not physically with the witnesses and attorney or notary; what will happen to the recordings and electronic wills if a corporate qualified custodian goes out of business; that non-Florida residents would be able to file wills in Florida that would be probated in the state; and the bill contained provisions about electronic notarization that conflict with F.S. Ch. 117, which otherwise governs notaries. The section, she said, was also concerned about the ability of witnesses, notaries, and attorneys to adequately recall details about a particular will execution if they participate in an assembly-line process for completing the documents.

Goodall also said the Uniform Law Commission, which studies laws that are common to states and recommends compatible language for state statutes, hasn’t had adequate time to study the issue. Similar legislation was proposed in several other states in the past year, she said.

“It raises some constitutional issues. How is your family supposed to find out what you’re doing if your will is being probated in Indiana and not in Florida?” she said. “We’re concerned about hacking and altering and changing of wills. . . .

“We felt like this product wasn’t the right product. It didn’t contain enough safeguards and there wasn’t enough reason to rush into something that could be potentially dangerous without thinking it through.”

While the section is concerned with people dying intestate, Goodall said that’s not helped if the law results in people wrongly thinking they have a valid will and still dying intestate.

Passidomo said the law addressed the reality that more and more business and transactions of all kinds, in and out of the courts, are being done electronically and without paper. She said the bill had adequate safeguards and would be no more dangerous than the execution and storage of paper wills. She said the bill will be particularly useful for younger, less affluent people who are technologically savvy and don’t have wills now. People with large estates will continue to go to attorneys personally, she said.

“If you have an extensive estate, you will go to an attorney anyway,” Passidomo said. “It will be young professionals with fewer resources [who use the process]. Most of those people don’t have a will now, and they’re not likely to get one.”

She said any off-camera, undue influence would likely be picked up in the recording of a will execution, and she said there are no more dangers than from an unscrupulous attorney who could take advantage of naïve witnesses and clients behind closed doors in the current process.

As for protection of the electronic wills, Passidomo said companies who are qualified custodians must be bonded so the documents are protected and available. That is probably more secure than attorneys who store paper wills in boxes in non-fireproof rooms or give them to clients who may lose them, she added.

“The electronic will process is part of a discussion that we are having with regard to paper versus electronic documents, and, over the last five or six years, the filing of electronic documents has grown exponentially,” she said. “There are provisions for electronic signatures on documents, electronic notarization of documents . . . .

“Electronic wills is one more piece in the movement toward the creation and filing of electronic documents.”

Michael Delgado, general counsel for Willing.com, lobbied for the bill in the Legislature. He said the company is aimed at people who need simple wills, adding, “I would go so far as to say 80 percent of the population would be able to fully complete a will in 30 minutes or less.”

That includes, he said, the online execution of the will for which the company would provide the witnesses and the attorney or notary.

The company already offers a free simple will for consumers, although it charges for related documents, and customers must still do their own execution. Delgado estimated the company might charge in the $25-to-$50 range for an online execution of the will and offer the customer the choice of an annual or one-time fee for storing it.

As for the governor’s veto, “I think it’s very, very disappointing. I think we had a robust legislative process where we went through five [House and Senate] committees,” he said. “The Senate [which passed the bill 34-0] was unanimous at the end.” The House passed the measure 73-44.

Delgado said he enjoyed working with representatives of the RPPTL Section, which resulted in changes to protect vulnerable adults and a requirement that five questions be asked of the client in an online execution to ensure there was no undue influence and he or she was competent. He added he was disappointed the section continued its opposition after those alterations.

“This is a concrete example of how the legal industry is changing. I’m sure this can be a scary process . . . but I feel there’s an overwhelming tide of change in how legal services are offered,” Delgado said. “I can’t imagine a world where a couple years from now Florida has not passed legislation that achieves what this bill sought to do.”

Passidomo said the biggest dispute with the RPPTL Section was over the notary provisions, and those were cited by Gov. Scott in his veto message.

“While the idea of electronic wills is innovative and may transform estate planning for Floridians, I believe this bill fails to strike the proper balance between competing concerns,” Scott said.

He continued, “[T]he remote notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction and are not cohesive with the notary provisions set forth in Chapter 117, Florida Statutes.”

He also said it could burden Florida courts if out-of-state residents used the law to file wills in Florida, and in some cases the resident’s home state might not recognize the will.

Scott also noted the remote witnessing, remote notarization, and nonresident parts of the bill were not effective until April 1, 2018, so the Legislature could look at “substantive changes and outstanding
questions” in the next session, which begins in January.

“Rather than sign an imperfect bill into law, I encourage the Legislature to continue to work on answering these outstanding questions and address the issues comprehensively during the next legislative session,” he said.

Passidomo said she expects the issue will come before the Legislature again, even if she doesn’t refile the legislation for the 2018 session.

“I believe the RPPTL Section will come with something, particularly with regard to the notary,” she said. “I think they understand and recognize that we’re not going to be using paper and pencil much longer, and everything is going to be in the cloud at some point. The concept of an electronic will might be unnerving to some older practitioners, but that is going to be the wave of the future.”

[Revised: 02-17-2018]