Signing a will in Utah has always involved a sort of ceremony to ensure that the testator's wishes are properly memorialized. Sometimes getting the testator, the attorney, two witnesses, the notary, and ofttimes an assistant into the same room proves to be a logistical hassle, which has only been recently intensified with the social distancing recommendations inherent with COVID-19. Utah now has a new statute that could potentially alleviate some of the stress of accommodating distance issues.
As of August 31, 2020, the Uniform Electronic Wills Act loosens up the traditional requirements for signing a will by permitting a testator in Utah to use either a physical or electronic signature. Also, a testator may sign a will without physically present witnesses. Instead, the witnesses must be “electronically present” by being connected in real time by electronic means; the witnesses can then electronically sign their attestation to the will wherever they are. A notary can then notarize all signatures to make the electronic will self-proving.
Because of the requirement of electronic presence, attorneys should ensure that the various parties are connected by video conferencing technology so that witnesses can see the circumstances surrounding the signing. Attorneys should also ensure that all video participants have clear video and audio before and after each reasonably important question and signature in order to establish that all is being witnessed and accomplished to the standard of the law. Along with any electronically stored estate planning documents on a thumb drive, attorneys should provide the client a copy of the electronically signed will proceedings to help alleviate any questions regarding the manner in which the will was signed.
On the other hand, communicating over the telephone appears as if it would also qualify as electronic presence, but being unable to see the signing and the environment in which the will is electronic signed may open doors for will contests after the testator dies, as witnesses would have a literal blind spot regarding the testator's free will in signing.
Email most certainly should not be used to arrange for an electronic signature because it could similarly expose the will to being contested. Further, slow delivery and messaging errors should disqualify the signing for not being communicated in real time.
If the will is to be self-proving, the attorney should consult with a remote notary to be certain that all notarial requirements are met despite parties being in different locations.
Because of the newness of the law, it is unclear how bulletproof an electronically signed will actually is. It remains to be seen if courts will employ more scrutiny in a will contest proceeding or simply accept anything that appears to meet the requirements. Further, it will be interesting to see what types of evidence will be required to prove a testator's capacity and intent, as well as the reliability of the witnesses' electronic connections.
At the very least, testators now have another tool to help them get an estate plan executed safely with regard to their safety.