In today’s electronic age your computer or smartphone can be used to accomplish a wide range of tasks. While technological advances are exciting and often make our lives much easier, it is important to also be aware of the possible downside to those advances as well. Such was the case recently with electronic Will legislation proposed in the State of Florida that would have allowed Last Wills and Testaments to be executed electronically utilizing video link technology. Fortunately, Gov. Rick Scott vetoed the bill. In his letter dated June 26, 2017, to the Secretary of State, “It did not strike the right balance between providing safeguards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible to a greater number of Florida’s citizens.”
House Bill 277 — Changing the Way You Execute Your Will
House Bill 277 would have changed the way in which a Last Will and Testament is created in Florida. Specifically, the manner in which a Will is required to be executed in the state. The proposed bill permitted “remote presence/remote notarization” of wills. Under the proposed bill the witnesses and notary, both of which are required when a Testator executed a Will, could all be in separate locations and meet by way of a video link. The potential problems with this are numerous.
The existing law in the State of Florida, and in most other states, with regard to the execution of a Will requires a Will to be signed in front of witnesses and a notary. This process allows for the witnesses to observe whether the Testator appears to have the capacity and whether there may be anyone influencing the Testator. The witnesses and notary may later be called to testify about the circumstances surrounding the signing.
Video Link Witnesses and Execution
The proposed bill provided for the use of a video link to validate the legitimacy of the Will. One important problem with using a video link is that it does not allow anyone to determine whether undue influence may be occurring at the time of execution. If for example, someone was in the room pressuring the Testator to sign the Will, it would not be apparent via the video. The Governor recognized these problems and said that “the remote notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction and are not cohesive with the notary provisions set forth in Chapter 17, Florida statutes.” That statute, relating to notaries, makes it a crime for a notary to not physically be present when notarizing a signature. The proposed bill, therefore, created a conflict because it allowed for remote notarization.
Concerns about the Will were not limited to how the new execution procedures would apply to a Last Will and Testament. The bill would also have allowed Living Wills to be executed using the same video link. A Living Will is a legal document that allows you to make important decisions regarding end of life treatment now to ensure that your wishes will be followed later if you are unable to express those wishes. Another related advance directive allows you to appoint an Agent to make health care decisions for you if you are unable to make them yourself. Similar concerns were raised with regard to allowing these documents to be executed electronically, as the lack of required witnesses allows for greater opportunity to exploit vulnerable adults in their final days of life.
In an effort to move the legislation along, a compromise was reached that delays the implementation of remote witnessing, remote notarization and nonresident venue provisions of the bill until April 1, 2018. The legislature did recognize that there were “substantive changes and outstanding questions” that needed to be addressed during the next legislative session.
Contact Kulas & Crawford’s Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the need for Vero Beach estate planning, or you wish to get started on your own Last Will and Testament, contact the experienced estate planning lawyers at Kulas & Crawford by calling (772) 398-0720 to schedule an appointment.
