Electronic wills in Florida

The 2017 legislature is considering permitting electronic wills in Florida.  While this may sound like a good idea, many including the Florida Real Property, Probate and Trust Law Section of the Florida Bar have some serious concerns and as such have created a white paper addressing some of the issues of concern.

Here is a summary of the white paper on Electronic Wills in Florida.

Senate Bill 206, entitled “Electronic Wills,” has been introduced in the Florida Senate.  This legislation did not originate with the Real Property, Probate and Trust Law Section of The Florida Bar (“RPPTL Section”). Nevertheless, given the importance of this proposed legislation to the citizens of the state of Florida, the RPPTL Section, believing that action must be taken, has taken a position in opposition to the proposed legislation. The legislation seeks to amend the Florida Probate Code by enacting the “Florida Electronic Wills Act,” through the addition of Sections 732.521 through 732.529 to the Florida Statutes and revisions to existing Florida Statutes, including Sections 731.201 and 732.506 (the “Proposed Act”). The Proposed Act would recognize the validity of electronic wills in the State of Florida, but would also drastically change Florida law relating to the execution requirements for wills, durable powers of attorney, and living wills.
RPPTL is against Electronic wills in Florida in current form.

For the reasons set forth in this White Paper, the RPPTL Section is opposed to the Proposed Act in its current state. Even recognizing that with the advent of technology, a testator may wish to create and sign a will on a tablet, computer, or in another electronic form, the Proposed Act in its current form goes far beyond merely recognizing the validity of electronic signatures on electronic wills. It allows for the witnessing and notarization of wills using remote audio and video technology without providing adequate safeguards to prevent fraud and exploitation of Florida’s most vulnerable citizens and to ensure the identity of the witnesses and the testator and the security and integrity of the electronic wills. This important issue deserves to be further studied, as is currently being done by the Uniform Law Commission, and the State of Florida should not rush into enacting this type of legislation without doing so. This is particularly important because the proposed statute would significantly change current law as it relates to the notarization of documents. If electronic notarization by audio and video technology is to be enacted in Florida, the legislature will need to re-write its notarization statutes and provide for the approval and regulation of the necessary technology. The Proposed Act does not address any of these concerns.

Primary Concerns regarding Electronic Wills in Florida include:

  • Protecting Testators from Exploitation and Fraud
  • Authentication of Testator’s Identity
  • Storage, Preservation, and Access to Electronic Wills
  • Integration of the Proposed Act with Existing Law

As previously noted, the Proposed Act represents a significant departure from existing law and carries with it significant risk of unintended consequences and glitches. Under the circumstances, the Proposed Act should include a delayed effective date such that it does not take effect until July 1, 2018. Additionally, the Proposed Act should clearly state that it only applies to electronic wills executed on or after July 1, 2018.

Here is a link to the Full white paper on electronic wills in Florida RPPTL Electronic Wills Act White Paper Final

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