Electronic Will Execution and its Downside

On January 1st, 2020, House Bill 409 (HB 409) will go into effect throughout the State of Florida. This Bill will allow people to execute wills from a distance through an audio-visual program like Skype. While the Bill does present a very convenient alternative for people that may not be able to travel or execute a will in person, there are many potential issues that need to be discussed.

A primary concern many have with the legislation is the purported protection built into the act meant to protect those citizens who the legislature has deemed most vulnerable to exploitation when executing estate planning documents. The legislation requires that the principal answer a series of three yes or no questions designed to identify whether the testator is a vulnerable adult, as defined in F.S. §415.102(28). A vulnerable adult is a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

The act requires the principal answer the following questions in substantially the same form as prescribed in F.S. §117.285(5): 1) Are you under the influence of any drug or alcohol today that impairs your ability to make decisions? 2) Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living? 3) Do you require assistance with daily care? If the principal answers yes to any of these questions, the principal may no longer execute a document outside the physical presence of witnesses. Interestingly, the statute does not require this exchange to be recorded as part of the audio-visual recording, and many anticipate these questions will be part of a series of click-through screens instead of verbal questions and answers.

Eventually, issues that are not currently being considered will inevitably pop-up throughout the State. The interesting part will be to see how the legislature and the courts decide to tackle the issues.