E-Wills –Coming Anytime Soon in Maryland?

By Fred Franke, Jr.

Franke, Sessions & Beckett LLC

Maryland, like most states, does not permit remotely witnessed Wills. Instead, the witnesses must be in the physical presence of the testator. Nor does Maryland permit “E Wills” – Wills executed in electronic form. Operating in the environment of the coronavirus pandemic and the resulting desire to stay-in-place, E-Wills, with a remote witnessing option,  suddenly look like a very attractive option to the traditional Will.

Although it has no E-Will statute, Maryland has two statutes that permit remote-electronic transactions.  The older statute is the Maryland Uniform Electronic Transaction Act which is part of the commercial  law statute.  These provisions permit remote-electronic transactions to take place with virtual signatures.  The type of transactions contemplated by the Act are bilateral contracts.  Real estate contracts, for example, are generally exclusively remote-electronic contracts.  Section 21-102 of the Maryland Uniform Electronic Transaction Act specifically excludes Wills as being a document that can be accomplished under the Act.  Wills, of course, are unilateral documents and not bilateral contracts which presents unique concerns as to the efficacy of such a document.

The second Maryland statute is the Revised Uniform Law on Notarial Acts (2018) which was enacted last year but effective October 2020.  This statute permits a notary to attest to a document of a “remotely located individual” as long as the signing individual and the notary are able to communicate with each either simultaneously by sight and sound.  Physical presence is not required.  The new notary act, however, does not permit use related to Wills or trusts. Neither Wills nor trusts require notarization in Maryland currently so that prohibition will have no direct impact.

The Maryland Power of Attorney Act requires two witnesses and a notary.  Estates & Trusts § 17-110 will permit, once the remote notary act is effective, that a power of attorney may use “communication technology” pursuant to the State Government Act § 18-214 (the new Notary Act) for the purposes of notarizing a power of attorney.  As an accommodation to small firms, the Power of Attorney Act permitted one of the two witnesses to be the notary.  That will not be the case if the notary is operating under the remote notarization ability of the new act.

On 30 March, Maryland Governor Hogan issued an emergency order authorizing remote notarization in Maryland. It is different than the new notary act that comes into the law in October in that it does not exclude Wills and trusts. Although a notary is not required to create a valid Will or trust in Maryland, the emergency order has important application while the coronavirus emergency order is in place. Many revocable trusts, for example, require amendments to be notarized if the trust initially was notarized. Thus, amendments to Maryland revocable trusts are easier to accomplish without violating a client’s self-quarantining. Also deeds of real estate require notaries, so the Governor’s order is very useful during this period under the “stay-at-home” conditions. Other emergency orders may be issued that will facilitate estate planning under the coronavirus conditions. Additionally, the Maryland General Assembly is slated to convene an Supplemental Session so it may craft further emergency relief.

Various states, not Maryland, have enacted, or at least introduced legislation, permitting electronic Wills. Such an act would be quite useful under the current difficult circumstances. Last year, the commissioners on Uniform State Acts approved a Uniform Electronic Wills Act (“E-Wills Act”).  One of the stated reasons for developing the E-Wills Act was to get ahead of the curve – E-Wills are being shoehorned into the existing common law in several decisions and several jurisdictions are enacting non-uniform acts.

There are several celebrated cases of common law recognition of E-Wills.  In an early case, the testator typed his signature in cursive font at the end of an electronic text then printed the text and had two witnesses, who watched him type his signature on the Will, sign the printed copy of the Will.  Taylor v. Holt, 134 S.W.3d 830 (Tenn. 2003).  That Will was found to conform to the Will statute in Tennessee. This case, of course, did not involve remote witnesses.

In another case, the testator dictated his “Will” to his brother who wrote the Will with a stylus on a tablet.  The testator then signed the Will on the tablet also using the stylus as did two witnesses.  The Will was admitted to probate.  In Re Estate of Javier Castro, Case No. 2013ES00140, Court of Common Pleas Probate Division, Lorain County Ohio (June 19, 2013). Once again, this case like the Taylor case only needed to address the media used to produce the Will.

In another case, the testator hand-wrote a journal entry titled “Last Note” on his phone.  The journal entry provided instructions for accessing the note and left the journal and the phone in his room.  The testator typed his name at the end of the document then shortly thereafter committed suicide.  In Michigan, the court applied the harmless error statute and concluded that the note was a document that could be treated as executed in compliance with the requirements for the execution of a Will.  In Re Estate of Horton, 925 N.W.2d 207 (Mich. 2018). The key to this case is the application of the “harmless error” statute in that jurisdiction. No such statute and no common law doctrine recognizes harmless error in Maryland.

As of 2019, four states have enacted electronic will statutes:  Arizona, Indiana, Florida and Nevada.  Many other states have introduce legislation.  The E-Wills Act is an attempt to bring some clarity and, of course, uniformity to these developments.

The E-Wills Act holds that an electronic Will is valid where the testator is physically located and meets the requirements of that state.  This parallels existing law which permits a testator to have a valid Will if signed when living or being in another state but who moves or dies in the state that would prohibit it.  To traditional estates and trusts lawyers, this is non-controversial.  The Nevada statute permits a person not physically present in Nevada to execute a valid Will electronically using Nevada law.  The E-Wills Act would only permit that Will to be valid in Nevada but not in the home state if the person wasn’t physically present in Nevada when it was executed.

The E-Wills Act gives two options for witnesses.  The first option is that an electronic Will may be executed with the testator and all of the necessary witnesses present in one physical location.  Maryland, for example, seems to use the “line of vision” rule where the testator and witnesses have to have an obstructed range of vision to be in each other’s presence.  Bittingham v. Bittingham,  147 Md. 153 (1925). In Maryland, the critical act is that the witnesses need to be in the testator’s presence when  they sign attesting to the document.

The other option for witnesses permitted by the E-Wills Act would be to permit the witnesses to be able to communicate in “real time” without a delay in exchange of information.  This parallels, to a certain degree, the Uniform Notarial Act statue that will become effective in Maryland in October 2020.

The signature itself does not have to be with a stylus under the E-Wills Act.  Signing means with the present intent to authenticate to affix to or “logically associate with the record” an electronic symbol or process.  This logical association standard is basically the same as Maryland’s Uniform Electronic Transaction Act requirement for signatures.

One concern that unites the various cases is to not invalidate a Will where it is clear that the person intended the document to be his or her last Will regardless of the formalities.  Accordingly, the E-Wills Act provides an option for harmless error if the proponent of the document or record establishes by “clear and convincing evidence” that the decedent intended the record to be his or her Will.  The harmless error rule was added to the Uniform Probate Code in 1990 and since then 11 states have adopted the rule.  Although popular in academia, the harmless error rule has not gained much currency among the states.

An obvious concern is whether the E-Wills Act will increase the likelihood of undue influence, fraud, or other pressure supplied to a testator that may be easier to perpetrate than with a more traditional Will with its strict rules regarding the presence of witnesses.  Fiduciary litigators, of course, wrestled with this same issue with changes to IRA designations, insurance beneficiary designations and other documents that are currently executed remotely without witnesses at all.  The rules currently governing the traditional Wills contained in the Wills acts or statute of Wills are protocols that are meant to protect against improper conduct.  The fact that there credible witnesses who are present and able to observe the testator signing or acknowledging the Will is believed to tamp down fraud or undue influence. The very fact, indeed, of the formal ritual in executing a Will increases the appreciation of the serious intent that the Will reflects.   The witnesses, of course, are designed to have a protective role validating that the testator has the capacity to make a Will and is protected from undue influence, fraud, delusion or coercion and that the Will is not a product of forgery or perjury.  Whether these protections will be properly preserved in the E-Wills statute is an obvious concern.  The promoters of the E-Wills Act, however, assume that E-Wills are coming regardless of whether there is a uniform act or whether, indeed, there are statues at all.

During an event such as the coronavirus epidemic, an E-Will statute has obvious appeal. Because it is such a departure from existing law and because it raises concern whether it adequately safeguards against fraud and undue influence, it should not be pushed through on an emergency basis. Nevertheless, an E-Will statute is ripe to be seriously considered by the Bar and the General Assembly during the next regular Session.