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Birmingham Bar Association Bulletin Fall 2018

uploads/2017/06/HB-277-Veto-Letter. pdf) In 2017, the legislatures in New Hampshire (Senate Bill 40) and in Virginia (HB 1643) sought to validate and regulate electronic wills. Neither bill became law. Courts in states without electronic wills statutes are forced to address electronic documents. For example, in a case in Ohio an electronic will was submitted for probate even though Ohio does not have an electronic will statute. In In re Estate of Javier Castro, Deceased, Mr. Castro was in the hospital and was told that he would die without a blood transfusion. He refused the transfusion. With Section Spotlight in the state of Nevada since 2001. (See, NRS 133.040) Other states are now considering electronic wills. Effective July 1, 2018, electronic wills are legal in the state of Indiana. (See, Indiana HB 1303) Other estate planning documents like trust instruments and powers of attorney can also be electronically created. Effective June 30, 2019, Arizonians can legally create electronic wills. Arizona’s statute requires the electronic will to be in the continuous custody of a qualified custodian who is not related to the maker of the will and who is not named as a beneficiary in the will. (See, Arizona HB 2656) This means the maker cannot keep possession of his or her will and neither can the spouse, children, parents or in-laws. Not all states have been successful in passing electronic wills statutes. In May 2017, the “Florida Electronic Wills Act” passed the Florida legislature and was set to become effective on July 1, 2017. (See, Florida HB 277) Governor Rick Scott vetoed the bill because he wanted more safeguards to protect vulnerable Floridians against fraud and exploitation. (See, https://www.flgov.com/wp-content/ the help of his brothers, he created a will that was both written and signed on a Samsung Galaxy tablet using S Note. He later died and the will was printed and submitted for probate. Citing Ohio’s Harmless Error Doctrine, the court admitted the electronic will allowing it to be probated. (2013-ES-00140 (Ct. Comm. Pl. Lorain Cnty., Probate Div., Ohio, June 19, 2013)). Likewise, this year the Michigan Court of Appeals ruled that a note written on a cellphone by a twenty-one year old man who committed suicide was a valid will. Michigan does not have an electronic will statute. Just because laws are passed does not mean that the general public or lawyers will quickly embrace electronic wills. It does, however, give online will drafting companies more advertising fuel. Today’s tech savvy youths will become tomorrow’s legislatures and testators. So, the future of electronic wills is bound to be discussed eventually in other states. G Jennifer Q. Griffin, Contributor Birmingham Bar Bulletin/ Fall 2018 25


Birmingham Bar Association Bulletin Fall 2018
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