Electronic-Wills Legislation: The Uniform Act versus Australian and Canadian Alternatives

Probate & Property, vol. 34, no. 5, Sept./Oct. 2020

San Diego Legal Studies Paper No. 20-477

18 Pages Posted: 26 Oct 2020 Last revised: 4 Nov 2020

See all articles by Adam J. Hirsch

Adam J. Hirsch

University of San Diego

Julia C. Kelety

Superior Court of California

Date Written: August 1, 2020

Abstract

Electronic wills, created on a computer and never executed on paper, are valid in only a few American jurisdictions today. Nonetheless, in 2019 the Uniform Law Commission promulgated the Uniform Electronic Wills Act and recommended it for adoption in every state. This article examines the Uniform Act and identifies weaknesses in its statutory blueprint. The article also challenges the proposition that electronic wills are appropriately dealt with under Uniform legislation. As an alternative, the article proposes that American states direct their attention to laws long in effect throughout Australia and in parts of Canada that validate electronic wills (along with audio- and video-wills) through harmless-error rules. Instead of creating a formalizing mechanism for e-wills, these foreign laws are remedial, allowing courts to probate e-wills that were improperly formalized under statutes that continue to call for paper wills. The article assesses the advantages and disadvantages of the two competing legislative models and argues that the foreign model is superior. Finally, the article suggests language for American statutes patterned after Australian and Canadian legislation.

Note: The instant manuscript corrects several errors made by editors that appeared in the printed version of this article.

Keywords: wills, electronic wills, e-wills, harmless error, dispensing power, inheritance law, comparative inheritance law, comparative law, uniform acts

JEL Classification: K11, K19, K36, K39

Suggested Citation

Hirsch, Adam Jay and Kelety, Julia C., Electronic-Wills Legislation: The Uniform Act versus Australian and Canadian Alternatives (August 1, 2020). Probate & Property, vol. 34, no. 5, Sept./Oct. 2020, San Diego Legal Studies Paper No. 20-477, Available at SSRN: https://ssrn.com/abstract=3697819

Adam Jay Hirsch (Contact Author)

University of San Diego ( email )

5998 Alcala Park
San Diego, CA 92110
United States

Julia C. Kelety

Superior Court of California

Central Courthouse
1100 Union Street
San Diego, CA 92101
United States

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