Utah Enacts Uniform Electronic Wills Act

On August 31, 2020, Utah became the first state to enact the Uniform Electronic Wills Act.  You can access the electronic version of Utah’s Uniform Electronic Wills Act here, and the pdf here.

The Uniform Electronic Wills Act enacted in Utah:

  • establishes the applicability of electronic wills;
  • addresses the effect of a will electronically executed in another jurisdiction;
  • sets requirements for executing and revoking an electronic will;
  • addresses records that are not executed in compliance with the requirements for an electronic will;
  • provides requirements for an electronic will to be self-proving;
  • allows for certified paper copies of an electronic will;
  • addresses uniformity of the law; and
  • provides that the Uniform Electronic Wills Act applies to wills of decedents who die on or after the effective date of the bill.

 

Only a few other states authorize electronic wills, including Arizona and Florida.  Some states have temporarily authorized remote witnessing in response to COVID.

What Is An Electronic Will In Utah?

The Utah Uniform Electronic Wills Act defines an “electronic will” as “a will executed electronically in compliance with subsection 75-2-1405.”

Subsection 75-2-1405 of the Utah Uniform Electronic Wills Act sets forth the requirements for the execution of an electronic will and states:

(1) Subject to Subsection 75-2-1408(4) and except as provided in Section 75-2-1406, an electronic will shall be:

>>>(a) a record that is readable as text at the time of signing under Subsection (1)(b);
>>>(b) signed:
>>>>>(i) by the testator; or
>>>>>(ii) in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
>>>(c) signed in the physical or electronic presence of the testator by at least two individuals within a reasonable time after witnessing:
>>>>>(i) the signing of the will under Subsection (1)(b); or
>>>>>(ii) the testator’s acknowledgment of the signing of the will under Subsection (1)(b) or the testator’s acknowledgment of the will.
(2) Intent of a testator that the record under Subsection (1)(a) be the testator’s electronic will may be established by extrinsic evidence.

To be a valid electronic will in Utah, the will must be signed in the physical or electronic presence of the testator by at least two individuals within a reasonable time after witnessing.  Therefore, instead of the testator and witnesses being in the same room to execute the will, the witnesses can be present with the testator over a video conference or other electronic form of communication.

What Is “Electronic Presence” Under Utah’s Uniform Electronic Wills Act?

“Electronic presence” is defined in the Uniform Electronic Wills Act adopted in Utah to mean:

the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.

“Electronic” means:

relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

Utah is a pioneer in the legal landscape of electronic wills with the adoption of the Uniform Electronic Wills Act.  Time will tell if the electronic method of will execution will create easier access for Utah residents to create and execute wills, or whether it will increase opportunities for bad actors to take advantage of the elderly population and lead to an increase in probate litigation.

If you are considering creating an electronic will, consulting a Utah probate lawyer who has studied the Uniform Electronic Wills Act is a smart first step.

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