By Kathryn Van Eeuwen, JD and Nicole Fasano, J.D., CTFA

Over the past two years, conducting business that requires document signings has been a challenge. If witnesses are required, it’s been even more problematic. No business has been more affected by the effects of social distancing than the estate planning world. However, some states, including Illinois, have taken steps to alleviate these issues when it comes to signing a will. The age of the electronic will has now arrived.

Before looking at the new Electronic Wills and Remote Witnesses Act in Illinois, let’s first review a very brief history of the electronic will in general.

The National Conference of Commissions on Uniform State Laws adopted the Uniform Electronic Transactions Act (UETA) in 1999. Although that act specifically excluded wills from its provisions, Nevada enacted the nation’s first electronic will statute in 2001. While that statute was officially on the books, it was not really viable as the technology needed to comply with its requirements had not yet been developed. Nevada revised its electronic wills statute in 2017 with Indiana, Arizona and Florida following suit in 2018, 2019 and 2020 respectively. In addition, the National Conference of Commissions on Uniform State Laws adopted the Uniform Electronic Wills Act in 2019.

On July 26, 2021, Illinois became the most recent state to enact its own version of an electronic will statute, the Electronic Wills and Remote Witnesses Act (the Act). The purpose of the Act is to provide for the execution, attestation, self-proving and probate of electronic wills, paper copies of electronic wills and wills attested to by witnesses through audio-video communication. Although not addressed in this article, the Act also provides for the valid execution, attestation and witnessing of documents, other than wills, through audio-video communication.

The Act specifies that to be a valid electronic will, the testator must execute the will (or have someone else in the testator’s presence execute the will at the testator’s direction) and that two or more credible witnesses must provide their attestation in the testator’s presence. The Act defines “presence” to mean either physically being in the same location and close enough to see and know that the testator is signing the will; or being in a different physical location but able, using audio-visual communication, to see, hear, communicate, and know that the testator is signing the will in real time.

To execute the will, the Act allows for the testator to use a wet signature or an electronic signature. “Electronic signature” is defined as a signature in electronic form that uses a security procedure outlined under the Electronic Commerce Security Act. After the testator has signed the electronic will, each witness must then also sign with an electronic signature while still in the presence of the testator. If the will is signed without witnesses, the witnesses are still permitted to sign but only after the testator acknowledges a previously made signature as the testator’s act.

Although the above guidelines for executing the will may seem relatively straight forward, the Act goes on to provide detailed instructions on what Is considered a valid attestation through audio-video communication. First, the attesting witnesses must be physically in the United States at the time of attestation. Second, the witness must make a positive determine of the testator’s identity. To establish identity, the witnesses must personally know the testator or view government issued identification or other pictured ID during the video conference. And third, if the will consists of separate signatures pages, attestation clauses, or affidavits forming a part of the will, a paper copy must be generated of the witnesses’ signatures and attached to the paper copy containing the testator’s signature within 10 business days of the attestation.

In some instances, Illinois law requires that a will be presented or retained in its original form. The Act specifies that a certified copy of an electronic will satisfies that requirement. To be considered certified, the paper copy must be designated as such by the person who converts the electronic record to a paper copy. Certification must include the all the following: date the paper copy was prepared; the name of the person who prepared it; the date the person obtained the electronic record; a description of how the record was obtained; a confirmation that the paper copy is a complete and correct copy of the electronic record; and confirmation that the electronic record is a tamper-evident electronic record. To be deemed tamper-evident, the electronic record must have a feature whereby any change to the electronic record is displayed whether in the electronic record or paper copy form.

The above is just a glimpse into the new electronic age dawning in the estate planning world. What started timidly twenty years ago gained momentum during the age of covid and is likely to keep on picking up steam. In Illinois, while there are conveniences associated with the idea of remote signings and electronic records, there are also many new items for consideration such as having the necessary electronic capabilities to comply with all the requirements mandated under the new statute. Unlike the Nevada law enacted in 2001, technology does currently exist to allow the new Electronic Wills and Remote Witnesses Act to be implemented. Now it is up to attorneys to ensure they have access to and possess the necessary understanding to ensure the documents created comply.