Black Tie Optional: The Eroding Formalities to Create a Valid Will1

By Melissa Osorio Dibble, Benjamin Orzeske, Ray Prather, Jenna Rubin

These materials from the RPTE Section’s 35th Annual Spring Meeting describe the development and application of the harmless error and electronic wills legislation.

A. STATUTORY BASES FOR NON-TRADITIONAL ESTATE PLANNING

1. Uniform Electronic Wills Act (“UEWA”) a. Approved by the Uniform Law Commission (“ULC”) in 2019 b. Adopted in eight jurisdictions to date: i. Utah (2020) ii. Colorado (2021) iii. North Dakota (2021) iv. Washington (2021) v. U.S. Virgin Islands (2022) vi. District of Columbia (2023) vii. Idaho (2023) viii. Minnesota (2023) (substantially similar, but not identical to, UEWA) c. Introduced in 2023 in three additional jurisdictions: i. Missouri – Advancing in the House ii. New Jersey – Pending iii. Texas – Opposed by the state bar and unlikely to pass this year

2. Non-Uniform E-Wills Statutes a. Five jurisdictions to date i. Nevada (2001, Amended 2017) ii. Indiana (2018, Amended 2021) iii. Arizona (2018) iv. Florida (2019) v. Illinois (2021)

3. Uniform Electronic Estate Planning Documents Act a. Comprehensive statute addressing trusts, powers of attorney, powers of appointment, etc. b. Approved by the ULC in 2022 c. Introduced in four jurisdictions this year: i. Illinois – Passed House, pending in Senate ii. Missouri – Advancing in House iii. Oklahoma – Introduced, no hearing yet iv. Texas – Opposed by the state bar and unlikely to pass this year d. Non-uniform electronic trusts, powers of attorney (“POAs”), etc. i. Florida (POAs) ii. Indiana (POAs, trusts)

B. VARIATIONS BETWEEN STATE LAWS a. Yes: AZ (added 2023), CO, DC, FL, ID, IL, IN (with supervision by attorney or paralegal), MN, NV, UT, WA, VI, b. No: ND a. Yes: AZ, FL, NV, WA b. No: CO, DC, ID, IL, IN, MN, ND, UT, VI, a. Yes: CO (if Notary is in Colorado at the time of notarization), ND, VI b. No: AZ, DC, FL, ID, IL, IN, MN, NV, UT, WA a. Yes: CO, DC, FL, ID, MN, ND, NV, UT, WA, VI b. No: AZ (only for self-proved will), IL (tamper-evident documents required), IN (attorney or paralegal supervision required)

1. Remote witnessing of e-will permitted?

2. Custodian of e-will required for self-proving will?

3. Notarized, unwitnessed e-will permitted?

4. Integration with remote notarization statute for security?

C. HARMLESS ERROR DOCTRINE/WRITINGS INTENDED AS WILLS a. Strict Compliance i. Every state enumerates its own requirements to execute a valid will within its borders by statute. Historically, state courts have strictly construed these requirements and have invalidated documents purported to be wills that do not meet these requirements. ii. Proponents of the strict compliance doctrine believe that if the legislature deems it appropriate to include a requirement in the statutory scheme, it is not appropriate for a court to question whether that statutory requirement is really required. iii. The Uniform Probate Code (“UPC”) § 2-502 lists the requirements to create a valid will that have been adopted in some way, shape, or form by all states. In relevant part, according to the UPC, a will is valid when it is: a. In writing; b. Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and c. Either: i. Signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed the signing of the will or the testator’s acknowledgement of that signature or the acknowledgement of the will; or ii. Acknowledged by the testator before a notary public or other individual authorized by the law to take acknowledgments. iv. However, courts across the country (and the world) are relaxing the formalities needed to execute a valid will. In large part, this trend away from strict adherence to formalities is guided by the adoption of UPC § 2-503. b. Substantial Compliance i. The doctrine of substantial compliance gained popularity in the 1970’s and allows a technically deficient document to be accepted as a will as long as the document reflects the testator’s intent. ii. Professor John Langbein, a member of the committee that added § 2-503 on harmless error to the UPC and an advocate for the doctrine’s liberal application, summarizes the doctrine of substantial compliance by arguing that even if a will does not comply with wills formalities, the document can be probated so long as (1) the document expresses the decedent’s testamentary intent and (2) the document’s form sufficiently approximates the wills formalities to enable the court to conclude that the purposes underlying the wills formalities have been served.

1. How did we get here?

2. What is the Harmless Error Doctrine?

a. The doctrine of harmless error relaxes the statutorily prescribed formalities even more than the doctrine of substantial compliance.

b. Harmless error doctrine arose out of study of probate law in Australia. An Australian court found that a will could be probated that did not comply with wills formalities so long as the court “is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.” Wills Act Amendment Act (No. 2) January 1975 (SA) (emphasis added). c. Many states have adopted UPC § 2-503, which articulates a more flexible standard for evaluating technically noncomplying documents. i. Uniform Probate Code § 2-503: Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: a. the decedent’s will, b. a partial or complete revocation of the will, c. an addition to or an alteration of the will, or d. a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will. ii. UPC Comments state: “[w]hereas the South Australian and Israeli courts lightly excuse breaches of the attestation requirements, they have never excused noncompliance with the requirement that a will be in writing, and they have been extremely reluctant to excuse noncompliance with the signature requirement.” iii. UPC Comments further state that the goal is “to retain the intent-serving benefits of [the will formalities] without inflicting intent-defeating outcomes in cases of harmless error.” d. Restatement (Third) Of Property: Wills and Other Donative Transfers further expands on this approach: i. § 3.03, comment b: “[T]he purpose of the statutory formalities is to determine whether the decedent adopted the document as his or her will. Modern authority is moving away from insistence on strict compliance with statutory formalities, recognizing that statu- tory formalities are not ends in themselves but rather the means of determining whether the underlying purpose has been met. A will that fails to comply with one or another of the statutory formalities, and hence would be invalid if held to a standard of strict compliance with the formalities, may constitute just as reliable an expression as a will executed in strict compliance.” ii. Like the UPC, the Restatement recognizes a hierarchy of mistakes: “[a]mong those defects in execution that can be excused, the lack of a signature is the hardest to excuse. An unsigned will raises a serious but not insurmountable doubt about whether the testator adopted the document as his or her will.”

3. States That Have Enacted the Doctrine a. While only a minority of states have adopted some version of UPC § 2-503 harmless error doctrine, relaxing the strict formality standards is increasing in popularity. b. To date, six states have adopted the UPC’s harmless error doctrine in full6: i. Hawaii: Haw. Rev. Stat. Ann § 560:2-503 ii. Michigan: Mich. Comp. Laws Serv. § 700.2503 iii. Montana: Mont. Code Ann. § 72-2-523 (1993) iv. New Jersey: N.J. Stat. Ann. § 3B:3-3 v. South Dakota: S.D. Codified Laws § 29A-2503 vi. Utah: Utah Code Ann. § 75-2-5037 c. Four other states have adopted variations on the harmless error doctrine: i. California: Cal. Prob. Code § 6110(c)(2) a. California’s variation does not cure defective revocations, alterations, or revivals of wills that do not meet statutory formalities. ii. Colorado: Colo. Rev. Stat. § 15-11-5038 a. Colorado limits the application of its harmless error doctrine, saying that the doctrine is only applicable when it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent’s spouse. iii. Ohio: Ohio Rev. Code Ann. § 2107.24 a. Ohio’s harmless error statute re quires a defective will be cured after a hearing in probate court. The probate court must find the following by clear and convincing evidence that the decedent: i. Prepared the document or caused the document to be prepared; iii. Signed the document and intended the document to constitute the decedent’s will; and iv. Signed the document in the conscious presence of two or more witnesses. iv. Oregon: Or. Rev. Stat. § 112.238 (adopted in 2016) a. Oregon’s harmless error statute follows the UPC and does not require the testator’s signature, but imposes its own additional requirements: i. The proponent of the document must give notice to heirs and devisees under prior wills; and v. Provide a 20-day period for any person receiving notice to object before the court makes a determination. v. Virginia: Va. Code Ann. § 64.2-404(2) a. Virginia’s harmless error statute cannot be applied in circumstances where the testator failed to meet the signature requirement.

4. Significant Case Law a. Of the states that have adopted the harmless error doctrine, New Jersey’s Supreme Court has perhaps upheld its most expansive application. In In re Estate of Ehrlich, 47 A.3d 12 (App. Div. 2012) appeal dismissed 64 A.3d 556 (N.J. 2013). i. Applying the harmless error doctrine, the New Jersey Appellate Division upheld the probate of a copy of an unsigned document as a valid writing intended as a will. ii. Richard Ehrlich (“Decedent”) was a trusts and estates attorney. Upon his death, his nephew located an unsigned copy of a document labelled “Last Will and Testament” in Decedent’s desk. The document contained a handwritten note: “Original mailed to H.W. Van Scriver 5/20/2000[.]” H.W. Van Scriver was the named Executor and Trustee of the Will; he also predeceased Decedent. No original Will was returned to Decedent or his Estate. iii. The Appellate Division found that the proponents of the document showed by clear and convincing evidence that (1) the document was reviewed by the testator, (2) the document expressed his testamentary intent, and (3) the testator assented to the document, even though the document was not signed by the testator. b. An Ohio court applied its harmless error statute and admitted an electronic document drafted on a Samsung Galaxy tablet as the testator’s will. In re Estate of Castro, No. 2013ES00140 (Ohio Ct. Common Pleas, Prob. Div., Lorain County, June 19, 2013). i. The contents of the will were dictated by the testator to his brother, and the testator signed the document using a stylus. Two witnesses also signed using the stylus. ii. The court found that the document on the tablet satisfied the state’s requirement that the will be “in writing” and that the other formalities were met. c. In Colorado, a man gave his domestic partner of over twenty (20) years a card with a typed, signed note that listed how he wanted his assets disposed of when he died. The testator died a year later. In re Estate of Wiltfong, 148 P.3d 468 (Colo. App. 2006). i. The purported will was signed, but not acknowledged. The Colorado Court of Appeals found that a signature or acknowledgement would be acceptable. ii. Even though the appellate court found that the Colorado’s harmless error doctrine is intended to be limited to minor flaws in execution of documents intended as wills, it remanded the case for a determination of whether clear and convincing evidence exists to prove that the document was intended by the testator to serve as his will. The appellate court directed that extrinsic evidence could be used to make this determination, including the decedent’s statements to others about the letter. d. Oregon adopted its version of the harmless error doctrine the most recently, in 2016. i. The Oregon Appellate Court heard its first case applying the state’s harmless error doctrine in 2019 in In re Boysen, 297 Or. App. 21 (2019). ii. In Boysen, the testator prepared a holographic will in the presence of two of her grandchildren. However, those grandchildren did not sign the document as witnesses to the will. The testator gave the document to those grandchildren for safekeeping. iii. After creating this document, the testator made statements inconsistent with what she stated in the document. However, the court reversed the probate court’s rejection of the will, finding that confirming the testator’s intent to make the document her will at the time of execution (and not at any time thereafter) is essential. The appellate court remanded the case to the probate court to determine the testator’s intent at the time of creating the document. e. Pennsylvania has not adopted any version of the UPC’s harmless error doctrine, however, it has accepted documents that are not technically compliant for probate. i. In Estate of Kajut, a Pennsylvania Court of Common Pleas allowed a will to be submitted for probate even though the testator (who was legally blind) made his mark on the will after his name was already typed underneath the signature line. To be in accord with law at the time, the testator should have made his mark before his name was typewritten under the signature line. ii. The Kajut Court found that the will was “in substantial compliance with the Wills Act… [t]he intent of the testator was plain; no useful purpose can be served by destroying the will he created by a technical adherence to the Wills Act.” 22. Pa. D. & C.3d 123, 136 (C.P. Westmoreland 1981). iii. Thus, although Pennsylvania has not formally adopted the UPC’s harmless error doctrine, it has found exceptions to where its own statutory formalities are not met.

5. Resistance to the Adoption of Harmless Error Doctrine a. Is it necessary? Many courts impose a “flexible strict compliance” approach, acknowledging that the default approach is strict compliance, while taxing a flexible approach to applying a form of substantial compliance to execution scenarios when they think best. b. Downsides to Harmless Error Doctrine i. May encourage third parties to engage in misconduct. ii. May result in increased costs of administration because testators may be more complacent in how they express their intent resulting in increased litigation. c. States like Florida and Texas have affirmatively rejected the doctrine. d. Modification to correct scrivener’s errors: different mechanism by which to balance testamentary intent with wills formalities.

6. Non-Traditional Wills Admitted Around the World a. The harmless error doctrine is not unique to the United States. Other countries have adopted their own versions of this doctrine. i. Israel a. Israel adopted its form of the harmless error doctrine in 1965 and was the first country to do so. Israel adopted the revised version of the statute in 2004, which is what is in effect today. b. The revised statute requires strict compliance with certain parts of the will, namely, that the document must be in writing with two witnesses OR a holographic will that is completely handwritten. c. Noncompliance can be permitted by the court for the other requirements if the court is satisfied that the will represents the testator’s wishes.

ii. Australia

a. Australia has a statute that lists the formal requirements that must be met to create a will. However, one provision of this statute (section 18 of the Succession Act of 1981) allows Australian courts to recognize a document as a will if the court is satisfied that the decedent intended the document to serve as a will.

b. Three conditions must be met for Australia’s harmless error doctrine to apply: i. The document must exist (as defined in the statute); vi. The document must purport to state the decedent’s testamentary intent; and vii. The decedent must have intended for the document to be his will. c. For example, the Supreme Court of Queensland found an unsent text message to fulfill these requirements. The court considered facts such as the fact that the decedent addressed in the text how he wanted to dispose of his assets in the text and also included information such as his bank PIN number, date of birth, and where he stored cash. Re Nichol; Nichol v. Nichol & Anor, iii. Canada a. In 1987, the Uniform Laws Conference of Canada approved a harmless error measure for the Canadian Uniform Wills Act. b. However, the Canadian provinces of Manitoba and Saskatchewan are the only provinces who have enacted harmless error statutes.

[2017] QSC 220, 2017 WL 4534236 (S. Ct. Queensland (Oct. 9, 2017).

D. BENEFITS AND CONCERNS FOR ERODING FORMALITIES

1. Electronic Wills a. Signings are easier i. Documents don’t have to be printed before the signing or assembled after the signing. ii. Remote signings provide flexibility and allow clients to sign documents from their home or office while having their attorney oversee the process and provide witnesses. This helps attorneys fulfill their obligation to ensure that the documents are signed correctly. iii. Technology can assist people with disabilities. For example, clients with visual impairments can adjust their settings to provide larger text, and people with hearing impairments can have access to closed captioning to understand oral instructions and answers to their questions. b. Effects of Integration with electronic notarization statutes i. Knowledge-based Authentication (“KBA”) and Credential Analysis a. KBA prevents fraud and forgery b. Passing the KBA within 2 minutes may provide evidence of testamentary capacity c. Certain people may find the KBA difficult to successfully complete. ii. Recorded signings a. Recorded signings provide visual evidence of the testator during the signing. b. While some recordings may demonstrate the testator had capacity, clients aren’t actors. Some people – particularly those who are unfamiliar with the e-notarization process – may not come across well in a recorded signing. c. Clients who are ill or have physical evidence of their disabilities may be particularly uncomfortable being recorded. d. Ultra-wealthy clients may have concerns about their likeness being recorded and stored outside of their control. iii. Cost a. Most notarization platforms charge a fee. This may not affect most clients, but some non-profit organizations have raised concerns about access to justice. iv. Tamper-evident documents a. Tamper-evident documents provide security after the signing to ensure no changes are made to the will. b. They also provide audit trails of the signing that include the date and time of the signing and IP addresses of the devices used in the signing. Some audit trails provide the location of the signers who are using devices with GPS to sign. c. Storage of Electronic Wills i. Custodians a. Custodians provide an “original” e-will that is safely controlled by a third-party. b. Custodians are not well-established or regulated, and there are concerns about what happens when a custodian goes out of business or fails to maintain e-wills. ii. Cloud Storage a. For states that do not require custodians, what are the best practices for storing electronic wills? Many clients may put the documents in a cloud storage account or leave them in their email account. b. Unfortunately, the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) requires a document to name who has access to online accounts or a court order with that information. Most powers of attorney are revoked upon the principal’s death, so they are not helpful in determining who is permitted to access an electronic will upon the testator’s death. If the will is in cloud storage, the person named to access the account cannot access it because they don’t have a copy of the will that provides access. This leaves obtaining a court order as the only option, which may be burdensome. d. Revocation i. Most states allow a will to be revoked by a physical act, but the physical act that destroys an electronic will is ambiguous when there is no “original” document. ii. Heirs and legatees may not know the physical act has occurred if only one file containing the e-will must be destroyed. iii. A testator may accidentally revoke the e-will by deleting a file after copying it in another location. iv. If intent is required to destroy an e-will, this opens the door to litigation as to whether the testator had intent to revoke it. v. If all the files containing an e-will must be destroyed to revoke the e-will, the testator may easily miss a copy of the file. For example, there might be a version of the e-will archived in the testator’s sent messages folder or on an old computer or cell phone. e. Litigation i. Litigating e-wills may be more costly because, in addition to the traditional experts used in will contests, these cases may require experts in the technology used to create and sign the e-will. f. Growing Pains and Unexpected Issues i. E-wills are new, so unexpected issues may arise. ii. For example, Illinois has allowed e-wills since 2021, but the Administrative Office of Illinois Courts has not yet issued guidelines for numbering and storing e-wills as public records. As a result, the County Clerks of Court are only accepting paper copies of e-wills for filing.

2. Harmless Error Rule

a. Testator Intent vs. Opportunity for Fraud

i. The intent of the harmless error rule is to make it more likely the testator’s intent is carried out in probate.

ii. But formalities for creating a valid will prevent fraud and undue influence. Allowing wills that do not strictly adhere to the statutory formalities may create opportunities for unscrupulous acquaintances and family members to take advantage of testators.

b. Effect on Judicial Resources

i. Strict adherence to will formalities allow judges to quickly determine whether a will is valid. Thus, close examination of the circumstances for signing a purported will is required only in cases where an heir or prior legatee wants to contest the will’s compliance with statutory formalities.

ii. The harmless error rule allows potential legatees to present documents that do not meet the strict formalities of a will. Thus, courts are required to review the circumstances of the signing when potential legatees want a document that does not meet the formalities admitted as a will and when heirs and prior legatees want to contest a will that adheres to statutory formalities.

iii. There has not been a noticeable uptick in will contests in jurisdictions that have adopted the harmless error doctrine. However, courts will inevitably need to devote additional time and resources to evaluating the validity of wills that do not meet traditional formalities as more states adopt harmless error statutes and more wills seek their protection.

c. Malpractice Claims

i. For estate planning attorneys who mishandle a will signing, the harmless error rule minimizes the damages that result from an invalid will. Thus, fewer malpractice claims may be brought against those attorneys.

Endnotes

1. These materials were prepared for and presented at the RPTE Section’s 35th Annual Spring Meeting in Washington DC, May 10-12, 2023.

2. Melissa Osorio Dibble is an attorney at Archer & Greiner, P.C. in Voorhees, NJ.

3. Benjamin Orzeske is an attorney with at Uniform Law Commission in Chicago, IL.

4. Ray Prather is an attorney at Prather Ebner Wilson LLP in Chicago, IL.

5. Jenna Rubin is an attorney at Gutter Chaves Josepher Rubin Forman Fleischer Miller, P.A. in Boca Raton, FL.

6. Washington, D.C. adopted the UPC’s harmless error rule for e-wills under DC ST § 18-906.

7. Utah’s harmless error rule applies to e-wills under U.C.A. 1953 § 75-2-1406.

8. Colorado’s harmless error rule applies to e-wills under C.R.S.A. § 15-11-1306.