Can’t we just e-sign our Wills? Clients are surprised to learn that under Minnesota law, a Will must be signed on physical paper, in ink, and in the physical presence of two witnesses. Since many legal contracts can now be signed by electronic signature, Will signing formalities might seem to be stuck in the 1950’s. I was once told by a woman at the end of our last date that I belonged in the 1950’s. I therefore deem myself a good fit for the estate planning bar.
To bring Will signing formalities out of the 1950’s, Minnesota Governor Walz recently signed into law the Electronic Wills Act (“Act”). This month’s update summarizes how to sign a valid electronic Will (“E-Will”) under the Act, but also explains why, as a firm focused on the implementation of client-specific, comprehensive, and tax-efficient estate plans, the Act will have little relevance to our firm’s estate planning practice.
Will Signing Requirements, Generally
Minnesota law requires the following signing formalities:
- The person signing the Will, called the “testator,” must be of sound mind and at least 18 years of age;
- The Will must be in writing;
- The Will must be signed by the testator, or by someone else at the testator’s direction; and
- The Will must be signed by two or more witnesses.1
By reason of the Act, a Last Will is valid under Minnesota law through either traditional in-person signing formalities or in accordance with the new E-Will rules.
Electronic Will Signing
The Act expands the following definitions to permit the validity of E-Wills:
Signing: The testator and witnesses can sign by any “symbol, signature, mark or process with the intent to execute, witness or authenticate in writing.”2 With this expanded definition, it is now possible to “e-sign” a Last Will on a tablet, phone, or computer.
Witnessing: The two witnesses can either be physically present or virtually present. “Virtual presence” means that the two witnesses must be capable of communication with the testator, “…by sight and sound to substantially the same extent as if the individual were in a physical location…that would allow an individual to see and hear the testator.”3 A Zoom or Teams meeting would meet this test. The definition is broad enough to incorporate future Star Trek-style modes of communication as well.
Storage: The Will does not need to be printed onto paper as of the signing date, but it must be “retrievable in perceivable form,” and “is capable of verification that the writing of the electronic will has not been altered after its signing.”4 The Act does not require that anyone besides the testator have access to the stored E-Will; the stored document must simply be “retrievable.”
Reasons to Avoid E-Wills
The Act is likely intended to increase the percentage of Minnesotans who have a Will by creating the perception that more people can do it themselves. However, a public policy largely intended to target do-it-yourselfers should be viewed with caution by practitioners. Our firm will not be implementing electronic Wills in the absence of emergency circumstances for the following reasons:
- Probate Avoidance. A Last Will does not allow for the testator’s named fiduciary and named beneficiaries to avoid probate proceedings following death. We assist many of our clients use revocable trusts as Will substitutes to designate a fiduciary, name one’s beneficiaries, and avoid probate proceedings. The new E-Will rules do not address signing formalities of trust agreements. Therefore, we will continue to meet with our clients to conduct traditional signing ceremonies for trust agreements, wills, and related estate planning documents.
- Formality of Probate Proceedings. I advise our estate planning clients against being the “test case” when new strategies arise. Let others by the pioneers and try it out first. In the Twin Cities metro area, the county probate courts allow most of our client families to proceed through “informal” probate proceedings rather “formal” probate court proceedings. The informal process is much quicker, less costly, and less onerous than formal proceedings. Given the novelty of E-Wills, metro area probate courts will likely require that E-Wills be formally administered. Therefore, in comparison to traditionally signed Wills, E-Wills will likely require more administrative delay and more cost following death.
- Assurance of Validity of Will. The participation of two witnesses in a traditional in-person Will signing ceremony provides some assurance that the testator has adequate mental capacity and is not being subjected to influence in signing the Wills. This assurance is particularly important in situations where a Will may be challenged. Actual physical presence is far more likely than virtual presence to allow a witnesses to detect an issue, and provides more support to the validity of a Will if the Will is challenged. An E-Will signed by virtual presence reduces those safeguards, not improves them.
- Coordination and Disclosure. Veritage Law Group’s value proposition to our clients and families is our professional expertise, not just our document production. We advocate proper disclosure of the planning documents to the client’s key contacts and professional advisors. To that end, we encourage clients to provide key individuals access to their electronically-stored documents.
The use of virtual meetings with our clients was tremendously helpful during the COVID-19 pandemic. One could envision the need to use the electronic Will signing formalities in the event of an emergency, such as a pandemic or end-of-life situation. However, for the reasons outlined here, our firm will continue to conduct traditional (1950’s-style) Will signing formalities.
1 Minn. Stat. §524.2-501 and §524.2-502.
2 Minn. Stat. §524-1-201 (51). The effective date of the act is August 1, 2023.
3 Minn. Stat. §524.1-201 (43).
4 Minn. Stat. §524-1-201 (17).