Washington’s Uniform Electronic Wills Act (“the Act,” SB 5132-2021-22, sections 1001-1016) was recently signed into law and will become effective January 1, 2022. The Act brings significant and welcome changes to a world still in a pandemic, but like other new laws it also raises questions.
The current law in Washington requires that a valid Will, executed within the State, to be a physical writing, amongst other requirements under RCW 11.12.020. The Act modifies the physical writing requirement to allow electronic wills and witnessing to be done in the same manner as a physically written will. But electronic wills can now be signed with an “electronic symbol” by the testator and two witnesses. This change allows fully electronic execution of wills which removes the final barrier to electronic execution and notarization of all requisite personal and estate planning documents.
Of particular importance, the Act provides for the testator and witnesses who are in “the electronic presence of another” 1 to execute counterparts which together are considered a single document. This effectively allows the entire will execution to occur over an online meeting platform. For example, if the testator is quarantined or located in another secured location and cannot be in the physical presence of the witnesses or attorney, the parties will now be able to execute the will and witness affidavits separately and then the documents can be collected and merged by the qualified custodian of the electronic will.
The Act also creates the new role of qualified custodian, which is limited to disinterested adults and certain entities, who receive the electronic will; maintain chain of custody of the electronic will; will swear to the unaltered state of the electronic will; and delivers the electronic will to the court having jurisdiction or the named executor of the testator’s estate. The Act disqualifies interested parties from serving as a qualified custodian, such as an heir, beneficiary, or other person that has an interest in testator’s estate. Initially, this restriction seems sound, as a testator would not want to give custody of an electronic document to someone who can not only modify the electronic document but also benefit once the estate is probated. However, this is where the questions begin, because historically a testator or a testator’s spouse/partner have been custodians of their own physical wills. Thus, a testator or their spouse would be disqualified from being a custodian of their own electronic wills, as they typically have an acute property interest in not only their own but also each other’s wills.
Compounding the confusion, the Act goes further and requires an electronic will that has not been maintained by a qualified custodian, must be treated as a lost or destroyed will. Thus, the default treatment will be to view electronic wills held by an unqualified custodian as suspect. Thankfully, the Act allows a court to take proof of the execution and validity of the will and establish it as valid. However, the default treatment can potentially add more time and cost to a probate proceeding unbeknownst to a testator and their family who are unfamiliar with the law.
In summary, while the new law brings welcome changes, it also brings its own questions, including the uncertainty of new procedures that still need to be created and adopted, not only by Washington courts but also Estate Planning attorneys and the new class of qualified custodians for electronic wills. This is an evolving space so stay tuned. However, if you are interested in learning more, please use the links provided or speak to your estate planning attorney. If you would like to speak with a personal and estate planning attorney, please contact any of our attorneys, or reach us at firstname.lastname@example.org.
1 – Electronic Presence “means the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.”