A valid will in California must be in writing, signed by the testator (Prob. Code Section 6110). This means a physical writing. Electronic documents, with electronic signatures, are valid for many transactions in California under the Uniform Electronic Transactions Act (Civ. Code Sections 1633.1–1633.17). The UETA, however, does not apply to wills (Civ. Code Section 1633.3(b)(1)). In an increasingly paperless world, is it time to update the law to allow electronic wills?
The common law in some states has recognized the validity of electronic wills. In Taylor v. Holt (134 S.W.3d 830 (Tenn. 2003)), the Tennessee Court of Appeals upheld a will written by the testator on his computer and signed with an electronic version of his signature. The will was witnessed by two people who were physically present at the testator’s singing, and who signed a specially drafted attestation clause acknowledging the testator’s electronic signature (Taylor v. Holt, supra, 134 S.W.3d at p. 830-831). The Tennessee court found that the electronic signatures complied with Tennessee law allowing a signature on a will to be made by “any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record.”
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