Posted on January 26, 2022 by Denver Gant
On January 1, 2022, the Washington Uniform Electronic Wills Act (“Act”) took effect and in so doing brought estate planning documents into the 21st century. The Act modifies existing requirements in order to enable people to execute a valid Electronic Will. The changes allow clients, witnesses, and attorneys to overcome challenges such as lack of mobility, illness, remoteness, or a pandemic, which previously may have created a roadblock to modifying an existing or creating a new Will.
Requirements For a Valid Will in Washington
There are multiple basic statutory requirements for a testator (a male who makes a Will) or testatrix (a female who makes a Will) to make a valid Will in Washington. Briefly, those requirements are:
- Signed Voluntarily: The testator or testatrix needs to sign the Will voluntarily and without undue influence.
- Sound Mind: The testator or testatrix must have capacity to make a Will. To demonstrate capacity, the he or she needs to understand the nature and extent of their estate and acknowledge that the Will disposes of their estate according to their wishes.
- Age: The testator or testatrix must be age 18 or older.
- In Writing: Except for limited, infrequent applicable circumstances, a Will needs to be in writing.
- Signing: The testator or testatrix must apply their signature or a mark to the written Will or, in the presence and at the request of the testator or testatrix, ask another person to sign on their behalf by signing the testator’s name, stating it was signed at the request and sign their own name.
- Witnesses: The testator or testatrix must sign the Will in the presence of two disinterested witnesses who also sign the Will as witnesses at the testator or testatrix’s request as well as a self-proving affidavit that declares under penalty of perjury that the formalities of signing a Will were met.
Requirements for a Valid Electronic Wills
The Act changes a few of the requirements discussed above to enable a testator or testatrix to make a valid Electronic Will.
- Readable Text: Instead of the traditional physical hardcopy form, an Electronic Will need only be a record that is readable as text when signed which now allows for the Electronic Will to be held and signed in electronic medium. The Electronic Will cannot be held or stored as an audio file as Washington does not allow for oral wills.
- Electronic Signing: To facilitate the move to online signing, “sign” is now defined as a “present intent to authenticate or adopt a record, to affix or logically associate with the record an electronic symbol, an electronic sound, or process.” A testator or testatrix may apply their signature to an Electronic Will through typing, use of a finger or stylus on a screen, or use of an online signing platform like DocuSign. Another individual may sign the Electronic Will at the testator or testatrix’s direction, but that act of signing must still be done in the physical (not electronic) presence of each other.
- Electronic Presence for Witnesses: The two disinterested witnesses who the testator or testatrix asks to witness the signing of the Electronic Will no longer need to be in the physical presence of the testator or testatrix. While that option remains available, witnesses may now also be present electronically during the signing of an Electronic Will. The definition of electronic presence requires the individuals to be able to communicate in real time as if they were physically present in the same location. At this time, this requirement seems to be met only by using real-time video conferencing which should be recorded and stored. The witnesses must still also sign an affidavit that declares that the formalities of signing an Electronic Will were met. The affidavit may be self-proving and signed under penalty of perjury or the affidavit may be notarized (by a notary who is also present electronically).
- Qualified Custodian: The Act creates a new role of a qualified custodian to maintain custody of an Electronic Will. The qualified custodian must be eligible to so act. If the Electronic Will is submitted to court, the qualified custodian must submit it within 30 days of knowledge of death and submit it with an affidavit stating custody of the Electronic Will was maintained at all times and confirming the Electronic Will has not be altered in any way.
Thus, there are now two options for signing a Will in Washington. The traditional option likely will remain the gold standard and preferred option for both clients and attorneys since, as we have all experienced during the last couple years, online meetings often are not a quality substitute for face-to-face conversations. However, having the option to sign a Will electronically is a welcome and needed change; an Electronic Will is better than no Will or an incorrect or outdated one.