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Probate bar proposes legislation to permit electronic signatures on wills

October 18, 2017

Indiana law treats the signatures on a will with more reverence than any other, laying out the precise time-tested requirements needed to authenticate a document that will outlive and speak for the person who puts ink to paper.

Slade Slade

But in an increasingly digital world, the legal ritual of a person signing a last will and testament before two witnesses who attest to the signer’s capacity may be evolving. Lawmakers next year will consider a proposal to allow electronic signatures on wills and other trust and estate documents.

The Indiana State Bar Association’s Section on Probate, Trust and Real Property has been working for the better part of a year on the proposals after the General Assembly floated draft legislation in this year’s session. Estate lawyers had concerns, though, and vowed to return with a proposal for the 2018 session after more thorough vetting and scrutiny.

A 25-member task force studied the issue “to develop a reasonable and sensible approach to utilize current and future technology advances as well as protecting Hoosiers with sound parameters or standards,” section chairwoman Mary Slade said in an email.

“This is not an easy task because many states are in the throes of reviewing recent and upcoming uniform law approaches to these topics as well as modifying these approaches for their particular jurisdiction,” Slade said. Fraud prevention, identity validation, document preservation, and the risks and flaws of certain technology are among the considerations in developing a proposed e-signature law for wills, she said.

Dible Dible

Frost Brown Todd LLC partner Jeff Dible chairs the section’s task force that has been dealing with electronic signatures. He said the group will propose an entirely new section of the Indiana Code specifically covering the requirements for electronic signatures on wills. This way, the e-signing requirements would be in one place in the code for people who wish to use the new option without disturbing the traditional signing requirements found in I.C. 29-1-5-3.1.

The task force also will recommend legislation permitting e-signing on trust instruments, powers of attorney, and electronic notarization, Dible said.

Proceed with caution

While a proposed electronic will signature law would expand the reach of technology into the execution of wills, Dible said the task force didn’t want to change the law’s requirements for signing and in-person witnessing by two independent parties. “The task force decided at least for now that Indiana should not allow remote witnessing of a will,” Dible said. “There’s too great a possibility someone could be an impostor.”

Dible said Nevada is the only state to date that has permitted electronic signatures on wills, though Indiana and a handful of other states considered such legislation this year. Nevada permits remote witnessing, he said.

Crowley Crowley

Dible and other task force members said that as more documents in general are electronically created, signed, filed and stored, wills eventually also will move in that direction. Members also said technology to authenticate and prove the identity of e-signatures and prevent document tampering has long been available and used in other contexts such as contracts.

“There’s no resisting it,” said task force member Paul G. Crowley of Butler & Crowley in South Bend. “It’s coming sooner or later, and what we wish to do is control the conversation. … There is just absolutely no way to ignore the fact that electronic signatures are here.”

But Crowley said the task force didn’t feel comfortable with remote witnessing. He, Dible and others had concerns that remote witnessing could create problems and be a boon for litigators, even if the remote witness observed the will signing via video.

For example, Crowley said, “If you’ve got a testator, maybe on a screen in front of you with both audio and visual, if the witness is not in the room with testator, how are they going to be able to judge voluntary and intentional acts as opposed to something done under duress from somebody not visible just off the screen?”

Schneider Schneider

Crowley said the law proposed by the task force would capture and store the electronic signatures of the testator and witnesses, along with proof in an accompanying certificate and metadata certifying that the electronic signatures were collected at the same time and place.

Lake Superior Judge Diane Kavadias Schneider said judges might give e-signed wills a bit more scrutiny, but e-signatures have become an accepted practice in many other areas of law. “You have to look at the totality of circumstances — who has the document, who’s bringing it in,” she said. While issues concerning the validity of a will do arise, “It’s very rare we have problems or issues,” she said.

Crowley said he’s proud of the task force’s work. “This may be a template for the rest of the country to look at as far as developing electronic signatures,” he said. Schneider agreed. “Indiana doesn’t always get credit, but we’re on the cutting edge often.”

While Indiana may be ahead of the curve, Dible said most clients and attorneys will continue to insist on a traditional drafting of what many consider their most valuable document. “There is not a great groundswell of demand among the general public to sign wills electronically,” he said.

Will e-filing rule update

Separately, the Indiana Supreme Court is expected to consider rule changes concerning what to do with original wills that have been filed for probate as Indiana trial courts move past paper filing and toward mandatory e-filing.

The comment period for an amendment to Trial Rule 86(F) closed earlier this month. Supreme Court spokeswoman Lindsey Borschel said the Rules Committee hopes to review the proposed rule changes this month, and the timing of any action by the court would depend on the committee’s progress.

The proposed amendment came as courts grappled with the undefined requirements for e-filing an original will that resulted in varied practices from county to county. The rule as proposed would require someone e-filing a will for probate to file “a complete and accurate copy of the will and an affidavit” swearing:

• That the person filing possesses the decedent’s original will or that it has been deposited with the court clerk;

• That the person is filing a true and accurate copy of the will;

• That unless the will has been filed with the clerk, the person filing will retain the original will until the estate is closed and the personal representative is relieved from liability, or the time to contest a will has expired, whichever is later, and;

• The person will file the original will upon a court order or as otherwise directed by statute.•

 

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