Are Electronic Wills Valid in Tennessee?

Tennessee does not currently have a statute which directly addresses the execution and validity of electronic wills. The formal recognition of electronic wills, however, may be coming.

In April Harvard Law School announced Robert H. Sitkoff was appointed to the Uniform Law Commission (ULC) drafting committee on Electronic Wills. This committee of legal experts will focus on drafting “a uniform act or model law addressing the formation, validity, and recognition of electronic wills.” There also is a possibility for the committee to expand its focus to include additional estate planning documents, such as those relating to incapacity like powers of attorney for health care or finance.

As the ULC addresses how to treat electronic wills, it is also moving toward adopting laws to coincide with newfound technological norms. Depending on the text of the legislation, executing a will may be as easy as making a few clicks on your smartphone or tablet. Despite convenience, however, it is difficult to say whether such a legislative overhaul would actually provide a lasting benefit for individuals who are interested in ensuring their legacy remains protected.

Nevada currently has NRS 133.085 in place to address the valid execution of electronic wills. The statute appears to substitute the need for attesting witnesses by allowing for the testator’s electronic signature to be accompanied by at least an “authentication characteristic.” An authentication characteristic includes characteristics of “a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature, or other authentication using a unique characteristic of the person,” meaning an individual could authenticate a will using the same technology used to unlock his or her iPhone. The statute further explains that the electronic record is the authoritative record here and that only one “authoritative copy” can exist.

Under the pending Florida Electronic Wills Act, CS/CS/HB 277, the bill deviates from Nevada law by requiring authentication by electronic signature of the testator and two witnesses. Florida also differs in what it considers the authoritative record by designating a paper copy of the electronic will as an “original.” Another interesting portion of the Florida bill is that it takes greater effort to clarify the expectations regarding a “qualified custodian” of the electronic will. A qualified custodian might include any businesses that provide individuals with storage protection systems for these electronic records. The bill places certain limits on what these businesses can charge individuals seeking to utilize their services, potentially limiting the stream of revenue anticipated by a qualified custodian and increasing costs for the individual.

Although one goal of creating a Uniform Electronic Wills Act would be to establish a route for individuals who cannot obtain estate planning services to execute a valid will in a cost efficient manner, the overall effect could actually leave loved ones wrestling with exorbitant costs in probate proceedings. With the potential for accidental deletion, image manipulation software, hackers, unauthorized copies, etc., there’s a chance that much could go wrong with the process of creating an electronic will

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