Electronic-Will Legislation: The Uniform Act versus Australian and Canadian Alternatives
Electronic wills, created on a computer and never executed on paper, are valid in only a few American jurisdictions today. Nonetheless, in 2019 the Uniform Law Commission promulgated the Uniform Electronic Wills Act and recommended it for adoption in every state. This article examines the Uniform Act and identifies weaknesses in its statutory blueprint. The article also challenges the proposition that electronic wills are appropriately dealt with under Uniform legislation. As an alternative, the article proposes that American states direct their attention to laws long in effect throughout Australia and in parts of Canada that validate electronic wills (along with audio- and video-wills) through harmless-error rules. Instead of creating a formalizing mechanism for e-wills, these foreign laws are remedial, allowing courts to probate e-wills that were improperly formalized under statutes that continue to call for paper wills. The article assesses the advantages and disadvantages of the two competing legislative models and argues that the foreign model is superior. Finally, the article suggests language for American statutes patterned after Australian and Canadian legislation.