Although the COVID-19 pandemic has changed many aspects of our lives, one thing that has not changed is the importance of estate planning. Creative, in-person signing ceremonies have emerged to ensure that plans are validly executed, including witnessing from opposite ends of a large conference table, witnessing signings through windows, and signing from six feet away, stepping back six feet while witnesses sign with their own pens, and retrieving documents only after witnesses have, in turn, stepped back six feet.
Many states have enacted laws or rules to help facilitate physically distanced estate plan signings. Last week, Jody Hall, reported on Rules 91 and 92 of the Colorado Probate Rules which allow for remote witnessing of certain estate planning documents. Utah’s remote online notarization statute went into effect on November 1, 2019. However, allowing for remote online notarization did not clearly settle whether remote witnessing would satisfy the requirement that a will be signed by at least two other individuals “within a reasonable time after he witnessed” the signing of the will. The Utah state legislature has taken additional steps to clarify that remote witnessing of wills will be permitted.
On August 20, 2020, the Utah state legislature took up H.B. 6001 Uniform Electronic Wills Act. The bill specifically addresses a person’s signing of his will outside the physical presence of the witnesses to that signing. The bill adds the “Uniform Electronic Wills Act” to the provisions that describe the valid execution of a will. See Utah Code sections 75-2-101, et seq. Under the bill, a person may sign his will and have it witnessed in the person’s “physical or electronic presence.” The bill explains that
“‘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.” The bill further explains that “signing” a document is not limited to using a traditional pen to actually sign the will. Rather, “sign” includes the adopting or affixing any symbol to the will with the intent that it represents the person’s signature. That is, if passed, Utah would allow for entirely paperless will signings and all of the parties could “sign” with the click of a button.
Both houses of the Utah state legislature passed the bill on August 20, 2020, and the bill has been sent to Governor Herbert for his signature. It remains to be seen whether additional rules will be necessary to safeguard against foul play—such as the remote online notary requirement that signers’ identities be authenticated. See Utah Code section 46-1-3.6(2)(b). In any case, adoption of the Uniform Electronic Wills Act has the potential to revolutionize the world of estate planning.
