It’s wonderful to live in the 21st century, where Amazon orders often arrive less than 24 hours after being placed, even on Sundays. Movies are on demand, and the internet allows us to manage banking and all else without ever needing to leave the house. And when I do leave the house, I wonder how I ever found my way to an appointment without my phone’s routing.
And now, with the Florida Electronic Wills Act, Senate Bill 206, (currently tabled and awaiting Rick Scott’s signature), Florida’s growing senior population will now have the convenience of creating their wills without needing the help of an attorney. How could this not be a good thing, especially for families who are concerned about the expenses associated with attorney’s fees? After all, the proponents of this act, Willing.com, are guided by experts from Harvard Law School and Yale Law School.
The Real Property, Probate and Trust Law Section of the Florida Bar (“RPPTL Section”) has taken a position of opposition to this proposed legislation, and I’m in complete agreement. Maybe it is predictable for me, an estate planning and probate attorney, to be against something that could impact my business. But the concerns I share with RPPTL over this bill are brought on by years of experience.
I fear that companies like this, however well intended, will only increase the numbers of seniors who are exploited, or unduly influenced. There are a number of potential headaches in this legislation, and there are quite a few ways that electronic wills could cost families much more, financially and emotionally, in the long run.
Consider:
1. Issues of blended families or unstable marriages
An estate planning attorney is trained to see potential issues miles down the road. My partner and I have both had cases where someone claims to need only a simple will… and as we discuss their situation, there are perhaps two or three divorces, adult children with their own troubled marriages, and/or business and legal issues.
As attorneys, we are experienced enough to hear a client’s true wishes and to ask the questions that reveal potential obstacles and threats to those wishes. In a complicated family situation, sometimes it takes some creative planning to make sure the right precautions are taken so that any wealth that is passed down will not be squandered or eventually passed to the wrong people.
I don’t see how online legal software will ever have the capability to have those conversations, or be able to offer similar counsel.
2. Manipulation, threats, or too much ‘help’ from a family member
It’s not uncommon for one sibling to be very opinionated or forceful in their attempts at guiding their mom or dad. Couple this with Mom or Dad’s lacking confidence at the computer. Now add on the possibility of senility. The issues around an online program that will create a Last Will & Testament are clear.
For example, when an adult child calls for an appointment for their parent(s), we make it clear that if it is their parent(s)’ will or trust we will be discussing, we will only be discussing it with their parent(s).
And during the consultation, we evaluate whether or not our potential client is of sound mind. Sometimes they will tell us that they are forgetful, or that they are a little slower than they used to be. But if their wishes are clear, we help them draft documents that are equally clear. No matter how much a family loves one another, sometimes there are things expressed in the confidentiality of my office that an adult child would never hear.
Professionals like me are here to protect our clients, and to make sure there is no one in the room guilting, dictating to, or otherwise influencing a testator. How can an online program offer that safeguard against undue influence?
I see cases of undue influence from time to time, and my concern is that this new law (if passed) will do nothing more than double the amount of contested wills going through probate court.
3. “I wasn’t quite myself…”
If someone shows up to my office without any pants on, I know that they’re not in the right frame of mind to draft a will, and we will not proceed until they are in a better frame of mind. If someone logs in at home while they’re intoxicated, there is no one to stop them or make sure that their last wishes on record are in line with their more sober thoughts.
Likewise, if a will is created when a testator is emotionally charged, the software can’t offer any counsel. Why take a chance that such a will could be forgotten, or not revised when either they or a situation may settle down?
Yes, Bill 206 still calls for witnesses. But only that those witnesses are in visual or auditory communication with the testator – not necessarily in the same room at the same time.
4. Prepare to spend a lot of time in Miami-Dade County during Probate
A Custodian is the person or entity charged with safekeeping of the will. In the proposed legislation, this Custodian is likely the online company that helped create the will. (And I’m guessing there will be some charge to store that electronic will with the ‘Custodian’.)
In this proposed act, an electronic will is allowed to be probated in the county in which the Custodian resides. So, if you and your family live in Orange County, and the decedent did their electronic will through Willing.com (offices in Miami), you could be dealing with the Miami-Dade courts throughout probate. (Willing.com will likely have competitors if this act is passed, so Miami-Dade is only an example right now.)
5. If an electronic will is ‘lost,’ it will throw the estate into intestacy
It will be as though there was never a will made at all, and the courts will proceed through probate and follow the intestacy statutes.
How could this happen?
For one, a company like Willing.com could opt to delete the will themselves. In their terms of service, they detail how usage of the site could be restricted (perhaps if a credit card associated with rolling charges expires?), or that “Any data, account history and account content residing on the servers running the Services may be deleted, altered, moved or transferred at any time for any reason at Willing’s sole discretion, with or without notice and with no liability of any kind.”
If that’s not scary enough, consider how some of the biggest companies and banks in the world are routinely hacked.
Either way, the money ‘saved’ on using an EZ legal type form might not make up for the thousands of dollars that a family spends litigating during probate.
6. Identity Theft
This is a huge concern with this legislation, not because of the risk of database hacking, but because all that is required in this bill is that a “photocopy, photograph, or facsimile, or other visual record” of a document establishing identity is uploaded to verify testator and witnesses.
How easy would it be for a bad actor close to the family to get a copy of a driver’s license? Or to have one made?
In summary, there are many smaller versions of these kinds of issues within this proposed act, particularly with integration of existing law. If you are interested in RPPTL’s white paper detailing all of the issues, you can find it here. Yet, in my opinion, absent a veto from the Governor, the Florida Electronic Wills Act will probably pass.
Even if electronic wills are made available to Florida’s citizens, I believe most people will do their research and see the issues inherent in trusting online programs to take the place of professionals. A Last Will & Testament should not be generated the same way as an auto insurance quote!