There apparently is a push for legislatures across the country to pass laws allowing electronic Last Will and Testaments rather than the traditional pen and paper Wills. In Connecticut a Last Will and Testament has to be signed by the testator and witnessed by two others who were present to see the testator sign the Will (C.G.S. §45a-251). Attorney’s usually include a self-proving affidavit that requires the witnesses be put under oath verifying what they witnessed and that the testator appeared to be of sound mind, memory and judgment eliminating the need, in most cases, for testimony before the court to accept the Will. The proposal now is for one to be able to draft their own Last Will online, electronically sign it with people in another physical location witnessing and notarizing the Will by video and electronically attaching their signatures. The potential for abuse with this process is staggering, and it is troubling that legislators would even consider this process in a society that often seems to be looking for every opportunity to steal and plunder. Formality in executing documents is there for the protection of those executing them and to cut corners is to invite trouble.
When an attorney meets with a client to discuss a Will, he is evaluating the testators’ competency; determining if the testator is being pressured to do things he does not want to do or would not normally do; and, is reading their body language which sometimes signals untruthful or coerced answers that can be flushed out with further questioning. In addition, the attorney delves into the testator’s knowledge of their assets and who they wish to leave these assets to. If the intended beneficiaries are not “natural objects of their bounty” then the attorney probes the situation, not to discourage such a distribution, but to further evaluate the testator’s intent and state of mind, and documents his file about the testator’s reasons for the “unnatural” distribution. A testator must have an understanding of his assets and know the natural objects of his bounty even if he does not leave his bounty to those objects. How will that be ascertained in this electronic process? This may be necessary evidence if a subsequent Will contest ensues. In addition, many times the distribution is not simply “I leave everything to my children equally”. Sometimes there are beneficiaries that need special protections either from themselves or from others that might take advantage of them or from creditors. The attorney’s insight and advice in these situations cannot be replicated with check boxes on some form some company posted online. Testators are dealing with protecting and distributing their life savings and possibly caring for their minor children. Is this something that you want to do by checking off boxes and possibly not truly understanding what you are actually doing just to save a few dollars?
With today’s technology, how easy would it be to create a fraudulent will using those same electronic signatures? How about altering the videos? Electronic technology is so advanced, that when we watch movies it is extremely difficult to separate what is real from what is digitally created. What is there to stop these criminal masterminds from doing the same with Will videos and electronic signatures? The Will execution formality is one that is derived from tradition and solemnity. By moving to electronic Wills, you are removing all of the built in safety precautions putting the decedent and his beneficiaries at risk of being defrauded. An original Will executed in the presence of witnesses is essential for insuring the sanctity and solemnity of the Last Will and Testament process; electronic Wills just invite more litigation.