Help Me With Sign Arizona Banking Living Will

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exits reading you I don't care see in this if I can advance it that's it I'm not sure hello there I'm Robert Fleming partner and the Tucson Arizona law firm of Fleming and Kirti after a couple of false starts we're ready to talk about digital wills in Arizona and and let me explain that this is our first attempt at covering this sort of thing by live-streaming so you know we'll probably have a couple of bumps along the way and and maybe it won't work exactly the way we intend it to work but but I'm gonna talk to you about how digital work wills work in Arizona today or how they don't work and what exactly we're talking about when we even discuss digital wills in the first place so digital wills you know first of all maybe we could do a little bit of definition of terms we need to we need to figure out what what is covered by a digital will what do we actually mean when we say digital will at all a couple of different possibilities we could be talking about a will that is prepared and signed electronically in the same way that you might sign a real estate contract or for that matter a receipt at a coffee shop or at a you know some nice boutique where you bought a cute frock or something you could sign on a pad to to complete that purchase and could you do the same sort of thing for a document that was prepared by an electronic means on some sort of electronic reader or do we mean a digital will is something that is prepared on an electronic device like a an iPhone or a smartphone or tablet some kind of device like that or do we mean that a digital will is something that takes care of passing assets that are digital in nature like your social media accounts and your online bank account your online business accounts or virtual currency if you if you have Bitcoin or some other virtual currency is that what we mean by digital wills and for purposes of our conversation we're going to drop out that last possibility it's an interesting one it's one that deserves some conversation we need to make sure that we have made some sort of plans for our social media accounts and other online presence but but that's not what we're gonna talk about today we're going to talk about wills that are completed and signed by some sort of electronic means they might be prepared on simple everyday handheld devices like like tablets and and smartphones and if you did something like that would it be admissible in a probate court in Arizona today before we explain that we have to kind of talk about what the what the rules are for wills in Arizona and please keep in mind if you're watching this from someplace other than Arizona the laws of individual states vary we don't know the laws of other states we at Flemington Kerdi are Arizona lawyers and we what we know is Arizona law the law may be similar but don't count on any of this being some where you want to check with somebody who knows what they're talking about in your state before you rely on any of this in Arizona there are several different kinds of wills that are recognized there are the classic attested wills they're based on four or five hundred year old English common law notion that a will should be written it should be signed by the person who is making the will we call them the testator and that it should be witnessed by two people who sign at a reasonably close time and who say that they watched the testator sign the will or that the testator told them that they signed the will before they signed as witnesses there are lots of old-fashioned rules about those attested wills it used to be in Arizona and many other states that that all of the witnesses had to be able to see each other they all had to be in the same line of sight in order for an attested will to be valid that's not the same that's not the requirement today in Arizona at least but that's kind of the origin of those notions of of everybody's standing around and doing the signing in in a common setting of course that's the best practice even if it's not required by the law Arizona has do a lot of other states also recognizes self proved wills a self proved will is not really a different kind of will it's just an attested will still has two witnesses it's still in writing still signed by the testator but it's also notarized and the notarization is to prove that all three of the the testator and the two witnesses all are who they say they are and that they're doing what they say they're doing the advantage of a self proved will is that when it comes time to probate the will you don't have to put on additional evidence that the will was properly signed it's presumed to have been properly signed so a self proved will it's just a if you will kind of a special type of a tested will Arizona also recognizes holographic wills not every state recognizes holographic wills but Arizona does and a holographic will is one that is substantially in the handwriting of the testator now deceased unsigned it has to be hand written and signed by the testator and and the point of today's conversation is not to tell you how to do a holographic will just to recognize that that's another kind of will that might affect how we analyze digital wills because in some ways a will that you type out on your cell phone or your tablet sort of looks like a holographic will it's not because the holographic will has to be in the handwriting of the testator and that's going to be a hard thing to do in the in the case of of typing something on a on a cell phone for instance although one of the stories that I'm going to tell you in a moment will involve something that might well have turned into a holographic will and might raise the question about whether you could create a holographic digital will which would be kind of a fun and interesting idea so this whole conversation about digital wills has really kind of caught fire as a result of several recent stories two of the stories are Australian stories they're not even us cases and I'm gonna explain to you in a minute why they are not really applicable in Arizona but they've helped people kind of catch the the notion and and want to explore it further and then there are two cases that are not in Arizona but that are in US states that we can talk about so let's start with Mark nickel mark nickel of these four stories is actually the most recent one mark nickel tragically killed himself in Australia in 2016 but just before he died he typed out a text message on his cell phone he didn't send it but he typed it out on his cell phone apparently he typed it out there's no one watched him do this but it was found on his cell phone later and it's it indicated who was who he expected and hoped would receive his property and at the end he typed my will and then he had a return and he typed mark nickel and then he put in a smiley face emoji and the question became whether that would be a will now it's pretty clear under Arizona law that that would not be a will and I don't want you to get the notion that I'm suggesting that Mark Nichols will might work in Arizona but it's it did work in Australia because Australian law has a provision that allows something that pretty clearly expresses the intent of the decedent to act as if it was a will even if it doesn't meet the formal requirements of a will Arizona does not have a law like that and so far as we know no state in the US has a law as forgiving of the formalities as the Australian law so it's unlikely that Mark Nichols will would work anywhere else or I'm sorry at least anywhere in the US but it did work under Australian law to pass his estate it wasn't even the first case that that had been decided like that the Carter u case out of Australia also the same state in Australia was a kind of a similar story that Carter you had typed out his will on his iPhone he had identified it as my will he had saved the file on his iPhone as my will in 2011 and as with Mark Nichol he killed himself shortly after he prepared this this document and in 2012 Carter used will was found to have been a valid last will under that same Australian law that treats documents somewhat more generously as I say those two Australian cases have gotten everybody kind of thinking about digital wills but they would not be valid wills under the law of Arizona certainly and probably not the law of any other state in the US as of now that could change and we'll talk about that in a minute meanwhile the same kinds of things are beginning to change in other states of the u.s. there's Stephen Godfrey's Tennessee will so Stephen Godfrey in 2002 typed out a will and word on his computer and rather than printing it out and signing it he typed his name in the signature blog using one of those cursive fonts that looks a little bit like a signature and then he printed it out with the cursive signature the sort of signature on the document and he had two friends over and and he told them this is my will and he pointed to the signature and said this is my signature I would like you to witness my will and they both signed in ink on the document that he had printed out and the Tennessee Court of Appeals ultimately decided that that was a valid will under Tennessee law because he was affirming that that was his signature when he asked the witnesses to sign so kind of an interesting question of whether if Steve Godfrey had shown them his signature on the the computer screen in the word document had asked them to type their names on the appropriate signature blocks whether their witness signatures would also qualify as signatures I suspect they probably would but that question didn't get resolved and not all of the questions about something you might call a digital will got settled and of course Stephen Godfrey's case was in Tennessee not in Arizona so we're not entirely sure how well Arizona courts would receive the same kind of a notion as as what was shown in in in Steve Godfrey's Will's case there's another u.s. case out of Ohio in which Xavier Castro is in a hospital as it turns out he's dying he's surrounded by his family he has three brothers and somebody says Javier you should make a will nobody can find a pen and paper so this really expresses how things other world is changing that it was easier to find a samsung galaxy tablet than it was to find a pen and paper so one of Javier's brothers opened up the tablet used a curse or a stylus sorry and and hand wrote what his brother told him he wanted in his will so Javier is dictating the terms of the will his brother is writing it on the Samsung and then when he's all done he hands the brother hands Javier the tablet and the stylus Javier draws a line and signs his name at the bottom of the document on the samsung tablet and then hands it back to his three brothers each of whom signs as a witness using the stylus and then tragically Javier died a couple of days later his brothers printed out the document on the tablet and asked the probate court in Ohio to admit this document as as a copy of Javier's last will an interesting question there is it a copy or is it the original well it's a copy because the original is actually on the tablet so how would you admit the original will in the case of a contest it's important to note that nobody contested castro's will if his will had not been valid everything would have gone to his parents instead and his parents said if the judge did not accept the Galaxy Tablet will that they were intending to give everything to the to the same people that Xavier had named in his will so it was not going to change the outcome and there was no contest but nonetheless the probate judge decided that that thing that Xavier signed on the galaxy tablet was a will would that same result happen in Arizona I think so but we don't really know we don't have any Arizona cases to decide whether or not the same result would obtain under Arizona law so it's probably not prudent to execute your will in that fashion because you would like to not be the test case and tragically we wouldn't know whether it was valid until after you had died so I'm not encouraging people to try this but if you had that circumstance where nothing else could be found perhaps doing it on the galaxy tablet would be or or a different tablet of course there's no requirement of any particular brand would be treated the same way as it was in Javier Castro's case and so this is the interesting question I suggested earlier suppose Xavier had taken the tablet and he had written exactly what he wanted and then using the stylus had signed it would that be a holographic will well might be it's in substantially Javier's handwriting in those facts and and it's signed by him and the statute doesn't say it must be on paper signed by an instrument that writes in ink and and so it might work in fact there's another old case that has nothing to do with digital wills in which a farmer who was trapped under the machinery when it when he had a an accident scratched out a very short well will on the fender of his tractor and then died under the tractor and and that fender was admitted as his will because he had written what he wanted in his own hand it's not ink it's not a paper and it's not there's not really any reason to think that your tablet would be any different though as I say you probably don't want to be the person who who tries that as a way of advancing the law after you've died so what about digital signatures generally are there some general rules about how the signatures on a will or any other sort of thing might work yes there are some rules first of all there's something called the uniform electronic transactions Act which has been adopted in Arizona and 46 other states and the District of Columbia and I believe for two Rico and the Virgin Islands as well there are only three states that have not adopted it and and and those three states have something that sort of acts in the same way they've created their own versions Arizona adopted it in the year 2000 almost all of the states adopted it in that same year when it was first introduced in 1999 when it was first develop meanwhile in that same year of 2000 the federal government adopted something called esign which stands for electronic signatures in global and national commerce and both of those laws make it pretty clear that an electronic signature will be treated the same as a pen and ink signature for all sorts of commercial transactions there to a considerable extent they're responsible for for the dramatic change in the last decade in how transactions particularly real estate transactions are handled and and the ability to execute real estate deeds and everything else using electronic means but both of those sets of statutes have an exception expressly in the statute they say these statutes do not apply to wills codicils or testamentary trusts for those of you who are very fond of the Oxford comma note that this the original statute the form law and the federal law both used the Oxford comma the Arizona adoption drops the comma after codicils completely irrelevant to the subject at hand but I'd just like to say the state of Arizona is not as enamored of the Oxford comma as as some other jurisdictions apparently so that so there is this notion of digital signatures for all sorts of transactions but an exception for Wills but last year in in the last year there has been quite an explosion of new legislation trying to expand this to allow digital signatures on wills and codicils as well and on testamentary trusts for that matter nevada actually adopted a statute that allows digital signatures on wills both the the testator and the witnesses and for that matter the notary can all sign digitally without ever having to get out their pen they can use the same kinds of devices that are used for real estate transactions and where they can use a stylus as Javier Castro did to sign their name on a tablet or or some sort of signature pad rather than having to use pen and ink so clearly today if you follow the rules and do it the way you're supposed to do it in Nevada you can create a digital rule a digital will it's interesting that Nevada has actually had this law on the books since 2001 and in the 16 years that it's been around no one seems to have ever heard of any case where they actually signed a digital will and using the Nevada law but but that was partly because it was so difficult to comply with the terms of the Nevada law as it was originally adopted in 2001 so this 2017 legislation made it vastly simpler to execute a digital will under Nevada law Florida also passed a new digital will law in 2017 but the Florida Governor ended up vetoing that bill so it did not be law meanwhile Arizona and Indiana and Virginia and New Hampshire all indicated that the their legislatures were considering digital will will bills but none of them adopted them they didn't get through any of the legislature legislatures in Arizona it's been made very clear that we are going to see the the bill come back again next year and in fact there's a study group that is trying to figure out what changes might be necessary in order to get general approval of the idea of digital wills there will be almost certainly be something introduced in 2018 meanwhile the uniform law commission which is a national organization that addresses these things is responsible for the a uniform electronic transactions Act that that I described a little bit ago as well as the Uniform probate code and the Uniform Commercial Code Uniform trust code all sorts of other uniform laws is is studying the very same question and will likely come up with a proposed digital will bill sometime in late 2018 or early 2019 it's pretty early in that groups study and so we don't know exactly what that bill will look like and or whether Arizona will end up adopting it but it's a pretty high likelihood that one of the things it will do is to suggest simply removing the the will codicil and testamentary trust exception from the Uniform electronic transactions Act so it may be that that the upshot of all of this is just to make digital signing of wills look exactly like the digital signing of real estate transactions and everything else that is today being signed digitally it's not here yet but that's probably what the the general terms are going to look like and in other states in Virginia and New Hampshire and in Indiana it's pretty clear that in Florida for that matter it's pretty clear that there will be new Bill's being admitted and discussed and they may be a little bit different from the thing that happens in Arizona they might be modeled on the Nevada style and and so we may see an explosion of states that actually permit digital will signing over the next year or so and it might include explicitly include Arizona but we don't know exactly where that's going a couple of things about the the changes in the law that are that are being developed one of them is that a lot of the of the energy and those new bills that have been discussed and passed in Nevada and Florida and the one in Arizona that didn't pass a lot of the energy focuses on how you store a digital will in a way that you can be sure it hasn't been altered because you know we have this notion that you can't alter paper of course you can but we have the notion that it's largely unalterable or that alterations could be detected and we don't have that same level of comfort with digital files and and so a lot of the legislation is focused on how to store those documents electronically in a way that we can be sure nothing has been altered by the time the decedent dies and it might be twenty years might be 40 years that that will has to sit somewhere in an electronic file so is it possible that digital wills are already available in Arizona well it might be there might be a couple of ways that you could sign a will digitally in Arizona again I'm not suggesting you do this because you don't want to be the test case the way this question is more likely to come up is what if somebody has done it and we're trying to determine whether or not what they did was a valid exercise and and there might be some ways to get the digital signing to be valid just because the Uniform law and the federal law exempt wills codicils and testamentary trusts it doesn't necessarily follow that they're invalid signatures so as with Javier Castro even though there's no specific law permitting it either probate law or digital signature law permitting the signing of a will or a codicil electronically it might be that it's a valid exercise if you can show that it was actually done by the testator and that it expresses their intent and that it was properly witnessed or whatever needs to happen the statute just says that a will an attested will has to be in writing it doesn't say handwriting it doesn't say the font it doesn't say paper so is a digital file a writing it probably is and the tested will has to be signed by the testator it doesn't say in in or in in blue ink or you know with a with a wet signature as they say in the industry so would a signature by a stylus on a tablet or on a the DocuSign kind of signature would that be a signature for purposes of a will it might be again please don't try this at home but it might be a valid document but here's something even more profound the Nevada law which is already out there of course we're not to matter but neither Nevada law says if you want to be covered by the Nevada law you have to have a Nevada will and how do you have a Nevada will you say that your will is executed under Nevada law so is it possible to stand at a terminal in Arizona complete the signing and say I am doing this pursuant to Nevada law well it might be it's not crystal clear that it is but it might be and it might be possible for the witnesses to the will to say that they're witnessing it under Nevada law as well and and thereby create a valid will even though Arizona has not expressly recognized digital wills and you know what that really isn't the end of the question there are a bunch of other questions to consider as well what about a trust there's nothing in in the uniform transact electronic transaction act exclusion that says anything about living trusts as testamentary trusts trusts that are in your will are not covered but it doesn't say the living trusts aren't covered so could you create a living trust under the uniform electronic transactions act or assign the federal law yeah there's nothing that says you can't so probably you can and the same thing with powers of attorney so you might be able to sign all of your estate planning documents except the will itself under current law without having to turn to Nevada or Florida or any other states law I you know I keep saying this please don't rely on it but but if you have the circumstance it might turn out to have been a valid exercise what about the witnesses under Arizona law or Nevada law or whatever law you end up signing a digital will under do the witnesses all have to be in the same room do they have to be in the same state do they have to be together and how about the notarization today you can do online notarization just for general documents if you want to have a document notarized you can you can go through a process of putting a picture of the document online and having a notary from another state whose law permits online notarization remote notarization to a fix the notarial seal to the document will you be able to do that for your will and your powers of attorney and your trust we just don't know all of those answers yet and and we're kind of waiting to see exactly how how those processes pan out so as a digital will valid in Arizona today we're not sure it might be and please don't try it but but if you have bumped into one it might be a valid document particularly it seems to me if you if you have circumstances sort of like the javier castro where there was some something that looks a little bit like the traditional execution of a will just done on an electronic instrument rather piece of paper we write about this sort of thing a lot here at Flemington Kirti we think that we have a pretty robust and useful website that has a lot of information and we urge you if you have more questions to visit our website and see if there are any answers available there and and we have several hundred maybe a couple thousand pages of newsletter articles and in general legal information that you're welcome to browse through and see if you can find anything more or any leads to additional information it happens that we recently did a newsletter specifically on digital wills and in the arizona law and and and so you could go look at that particular newsletter article for more information we also really recommend a publication a periodical that is put out by the the ABA s Commission on law and aging it's a regular newsletter it's called bifocal and the June 2017 issue it talks about the future of electronic wills and among other things it will tell you those stories about javier castro and and and the australian wills and the tennessee will with a little bit more background information if you have questions send them in we will be delighted to see your questions and we'll try to answer them in the comments section afterwards and otherwise we hope to see you next time we're live-streaming thank you for joining us and and be well