IF CALIFORNIA IS GOING TO ADOPT AN ELECTRONIC WILLS STATUTE, HERE ARE SOME QUESTIONS TO CONSIDER IN ADVANCE

The calendar is turning to the new season for the California Legislature and – as night follows day – there will be new proposals for the adoption of a California statute governing electronic wills.  Before those proposals surface, it is appropriate to consider a few questions.

  1. What quantitative analysis has been done?
    1. If a proponent of an electronic wills statute claims that there is an existing demand for electronic wills in California, what evidence substantiates that claim?
    1. How many deaths actually result in a probate and what amount of money and property is transferred by will in California these days?  Given the plethora of non-probate transfer mechanisms, is it worth the Legislature’s time to consider a new statute dedicated to electronic wills?  
    1. If a proponent of an electronic wills statute claims that electronic wills will be cheaper or more efficient for consumers, what evidence substantiates those claims?  What is cheaper or more efficient than a California holograph will?  
  2. Will the statute be simple and easy to administer?  Previous proposals have contained complex solutions to common problems such as revocation and storage.  Does a complex new statute governing electronic wills substantially benefit the citizens of California?  Will it be likely to generate litigation over unanticipated technicalities?
  3. Will the statute be outdated as soon as it has been adopted?  Previous proposals have been limited to wills that are textual.  We are now living in an era in which more and more business is being conducted by video.  If the legislature is trying to modernize California law and validate assumed consumer expectations, does it make sense to stop with wills that are textual?  Shouldn’t audio and video wills, too, be validated?  
  4. Shouldn’t any electronic wills statute meet the following goals? California should deal with the reality that its citizens have a reasonable expectation that they should be able to use technology to express their final wishes.  But, wouldn’t it make sense to require that any legislation validating a digital expression of a person’s final wishes meet the following goals?
    1. The rules should be simple.
    1. The rules should not impose expense.
    1. The rules should be compatible with a citizen’s individual and inexpensive solitary action, and should accept varied actions, ranging from writing to audio recording and video recording. 
    1. The rules should recognize that we are in the infancy of dealing with electronic expressions of intent.  We should not freeze into place rules that may be outmoded quickly.
    1. The rules should not directly benefit any particular service provider(s).

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