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Estate Planning & Probate Law FLASHPOINTS August 2021

Elizabeth A. Garlovsky & Sarah Barnes, Harrison & Held, LLP, Chicago
312-753-6185 | E-mail Elizabeth A. Garlovsky | 312-753-6155 | E-mail Sarah Barnes

Electronic Wills and Remote Witnesses Act: What You Need To Know and How To Incorporate Them into Your Practice

For those who attended in May, the IICLE® Estate Planning Short Course offered us a glimpse of legislation that is poised to be enacted in the upcoming months. The Electronic Wills and Remote Witnesses Act (Electronic Wills Act), 755 ILCS 6/1-1, et seq., became effective on July 26, 2021. This article will briefly discuss the key feature of the Electronic Wills Act, what this means for your practice, and how such law may impact the ability to reach underserved clients. IICLE® is hosting a CLE webcast on this topic on August 18, 2021, available for pre-order here. This is a great opportunity to take a deeper dive into the nuances of this law and to get answers to your questions about these new procedures.

Electronic Wills Act in a Nutshell

During the pandemic, Governor Pritzker signed several executive orders suspending and implementing temporary procedures that impacted the trusts and estates practice. Specifically, Executive Order No. 2020-14 (Mar. 26, 2020), 44 Ill.Reg. 5,961 (Apr. 10, 2020), authorized the remote witnessing and notarizing of documents such as wills and powers of attorney for property and heath care via two-way video conferencing. This departure from the traditional way we execute estate plans had prepared us for the new procedures outlined in the Electronic Wills Act.

The Act codifies and extends some of the temporary measures, allowing for remote witnessing of wills and other estate planning documents. However, it goes a step further to allow for the execution of electronic wills or those wills “generated, communicated, received, or stored by electronic means for use in an information system or for transmission from one information system to another.” 755 ILCS 6/1-20.

The Act includes key definitions, allowable methods for signing, witnessing, and revoking electronic wills, and the admission of electronic wills and certified copies of electronic wills to probate. It is important to note that electronic wills are still subject to all requirements under the Probate Act of 1975 and common law, but to the extent the Probate Act and common law conflicts with the Electronic Wills Act, the Electronic Wills Act controls.

Like a paper will, to be valid under the Act, an electronic will “shall be executed by the testator or by some person in the testator’s presence and at the testator’s direction, and attested to in the testator’s presence by 2 or more credible witnesses.” 755 ILCS 6/5-5(a). The term “presence” is defined under the Act to include physical presence or different physical locations but able to use audio-video communication to know that the testator is signing the document in real time. 755 ILCS 6/1-20. The most obvious example of audio-visual communication is Zoom, although several other platforms will satisfy this requirement.

Methods for Signing and Witnessing Wills

The Electronic Wills Act allows for the following scenarios that deviate from the traditional in-person signing and witnessing of paper wills:

1. The testator and witnesses are all in the presence of each other, but the testator is signing an electronic will instead of a paper will. Under this scenario, the only deviations from the traditional approach are that the will is not in paper form and electronic signatures of the testator and witnesses are used.

2. The testator and witnesses are in separate physical locations, and the testator is signing an electronic will. Under this scenario, the testator and witnesses are using audio-video communication to sign an electronic document. Under the Act, an “audio-video communication” means communication by which persons can hear, see, and communicate with each other in real time using electronic means. 755 ILCS 6/1-20.

3. The testator and witnesses are in separate physical locations, and the testator is signing a paper will using remote witnesses. This is the procedure that many of us adopted during the emergency orders. Section 15-10 governs the procedure for remote attestation of a will. 755 ILCS 6/15-10. The will may be signed and witnessed with separate signature pages, attestation clauses, or affidavits forming part of the will. 755 ILCS 6/15-10(e). The testator or person appointed by the testator must attach all separate signature or attestation pages within 10 business days of the attestation.

Additionally, while the Electronic Wills Act codified the current executive order allowing for remote notaries during the pandemic, the Act does not extend or codify the use of remote notaries beyond 30 days after the expiration of the emergency order. There will be an entire presentation on the Illinois Notary Public Act and the impact on remote witnessing during the upcoming CLE previously mentioned.

Certified Paper Copies, Admission to Probate

The Electronic Wills Act also provides that “[w]here a rule of law requires information to be presented or retained in its original form, . . . that rule of law is satisfied by a certified paper copy of the electronic record.” 755 ILCS 6/10-5. The person who is converting the electronic copy to paper form must comply with §10-10 through either testimony before a court, through a written statement certified under 735 ILCS 5/1-109 (verification by certification), or by affidavit attached to the paper copy.

Interestingly, §10-15 of the Act provides that “[i]f an electronic will is not attested to by 2 or more credible witnesses, a certified paper copy of the electronic will may be attested to by witnesses in the testator’s presence after the testator acknowledges the electronic signature as the testator’s act.” 755 ILCS 6/10-15(b). This appears to conflict with §5-5, under which a valid electronic will must be attested to in the presence of two or more credible witnesses.

Article 20 of the Electronic Wills Act, 755 ILCS 6/20-5, et seq., outlines how to admit electronic wills to probate. In addition to the requirements set forth in §6-2 of the Probate Act, 755 ILCS 5/1-1, et seq. (requirements for the petition), the petitioner will state in the petition that the electronic will is “a tamper-evident electronic record and it has not been altered apart from the electronic signatures and other information that arises in the normal course of communication, storage, and display.” 755 ILCS 6/20-5. If the petitioner is seeking to admit a certified copy of the electronic will, the certification requirements previously described in §10-10 must be fulfilled and the petition must be supported by sufficient evidence to overcome the presumption that the testator revoked the electronic will. 755 ILCS 6/20-10. This is quite similar to the familiar process of admitting a copy of an original paper will to probate, although there are specific requirements that must be met with respect to the certification by the person converting the electronic document to paper form.

Considerations for Practitioners and Protocols

While any deviation from the traditional way in which we execute estate planning documents will draw criticism, these changes are occurring whether or not practitioners are ready. Even for those who decide that electronic wills will not be part of their practice, anyone who handles probate matters may eventually be tasked with probating an electronic will. Likewise, clients are bound to inquire about them sooner or later (and like the newer model car, might consider a trade-in for upgrade in technology alone). All practitioners who include estate planning and probate in their practice should consider the potential risks and ways to mitigate risk now will help with a smoother transition to these new laws.

For those who plan to use electronic wills or continue to use remote witnessing, the new risks imposed by this technology does not change the existing obligation to ensure the client has capacity and is not being unduly influenced. This includes direct communications with the client, paying attention to any red flags with respect to the client’s intentions and behavior, and ensuring that the client has capacity to execute or amend their estate plan, regardless of whether in paper or electronic form. Attorneys can mitigate risk of undue influence during the remote meeting by having the client show their surroundings before and during the consultation and witnessing in order to prevent a family member from intervening (or at a minimum to manage the risk by acknowledging that it’s there). Many practitioners have already adjusted to the nuance of Zoom signings by adopting these procedures during the pandemic.

As we begin to incorporate electronic wills into our practice, it is also important to think about the logistics of remote signings of electronic wills and the storage of electronic wills, including the ethical and professional duties that come along with handling electronic records. Developing a protocol for remote signings of electronic wills is essential to using this method effectively. Having a form letter and checklist for the client and witnesses (if the client is using his or her own witnesses) prior to the signing to outline how the signing will be conducted, what technology requirements are needed before the meeting commences, and steps for sharing the testator’s screen to show the signing in real time are some considerations. Using an electronic signature program like DocuSign allows for easy electronic signatures and complies with the definition provided in the Act.

Protocols for storing and accessing these files once the signing is completed is also essential. In 2016, the Supreme Court of Illinois adopted an amendment to Comment [8] of Rule 1.1 of the Illinois Rules of Professional Conduct of 2010 (RPC) to include a duty of technological competence by attorneys practicing in Illinois. The comment to the rule, which is modeled from the American Bar Association rule, states as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [Emphasis added.] Comment [8], RPC 1.1.

Several articles have been written about the scope of this broad rule, including one by the Women’s Bar Association of Illinois in which the author identifies Rule 1.1 to include “the loss of privilege when sending emails, transferring documents, or responding to discovery requests, . . . awareness of social media sites as a source of discoverable information, . . . the growing use of cloud-based mechanisms for data storage, the risks associated with using mobile devices and basic data security issues, . . . the use of technology to enforce document retention policies, . . . the use of basic legal research tools and services, . . . and recurrent issues like metadata within documents.” [Footnotes omitted.] Emily Acosta and Misty Martin, Illinois’ Duty of Technological Competency, Inside Our WBAI (2016). Regardless of whether you intend to use electronic wills and remote witnessing, you have a professional obligation to keep abreast of the changing laws and how technology can serve your clients.

New Opportunities for Reaching Clients

Electronic wills and remote witnessing are tools in estate planning practitioners’ tool kits that will advance the scope of services to our clients. Those in favor of the increased use of technology in the legal profession will see electronic wills as another bridge to close the justice gap with underserved populations. A presentation from the IICLE® 64th Annual Estate Planning Short Course in May 2021 (What Does Red-Lining Have to Do with Trusts and Estates?) addressed the effects of redlining in the estate planning practice. A key takeaway from the presentation was that Black communities have been disproportionately excluded from estate planning services because of the effects of discriminatory redlining in the real estate market. Coupled with the lack of legal service providers in these redlined neighborhoods, estate planning is drastically underutilized. The same deficiency of legal service providers is seen in rural communities due to geographic and socioeconomic barriers. While electronic wills and remote witnessing do not remedy this larger issue, they do provide a practical way to expand the reach of estate planning services to underserved clients, especially if geographical constraints are present.

For more information about electronic documents and remote signings, register for the IICLE program Electronic Documents and Remote Signings, scheduled for August 18 at 11:30 a.m.

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