Leticia Maxfield, CBA Trust & Estate Section and member of the subcommittee of Trust & Estate and Elder Law attorneys, has reviewed this act over the last 11 months. The act is unique in that it assumes significant variations in state laws in order to harmonize electronic wills (e-wills) within the existing probate codes of all 50 states. The CBA subcommittee elects the options proposed by the act that harmonize the proposed statutes applicable to electronic wills with existing statutes and common law doctrines applying to paper wills. This preserves Colorado's long-standing public policy of validating written expressions of testamentary intent. The subcommittee recommends minor variations in sections 5 and 8 to incorporate Colorado's recently enacted law on remote notarial acts (Senate Bill 20-096) which becomes effective December 31, 2020, allowing e-wills to be notarized remotely through audio-visual technology. The only other proposed variation is in section 2 (5) to the definition of "sign" to require that the signature on a e-will be an electronic image of a signer's handwritten signature instead of an e-signature or a typed signature. This is to apply Colorado's long-standing version of the harmless error doctrine and supporting common law doctrines. The ULC recommends applying a state's existing harmless error doctrine to e-wills so this deviation should not affect the uniformity of the act. The sections have voted to approve the proposed act as recommended by the subcommittee, subject to minor refinements required by conforming amendments and other language changes during the legislative process.
Due to the Covid-19 pandemic, temporary rules were created to allow for the creation of e-wills, so the adoption of this act in 2021 is critical to move forward with ways to make e-wills a more practical option for estate planners. The subcommittee favors the creation of a central digital database to store electronic wills, but due to the possible fiscal impact of such a database it recommends that the central repository follow at a later date. The uniform act, as recommended by the subcommittee, still needs the approval of the CBA Policy Committee before proceeding.
The commission had questions about changing the definition of "sign" and the use of electronic signatures. Ms. Maxfield answered that Colorado is unique in that it requires wills to be notarized and Colorado's harmless error document does require a handwritten signature. The uniform act seeks to build on current state law to include e-wills and not create different standards for paper wills and e-wills. The commission also had questions about the deferment on a central repository or database. Ms. Maxfield answered that it may be appropriate to piggyback it onto a database that will be created through the court administrator's office (House Bill 19-1229) and is to be funded in 2023. Commissioner Morris will send the draft to the ULC for review to confirm that the proposed changes do not affect the uniformity of the act. Ms. Maxfield indicated that the subcommittee has also been in contact with the ULC on some of the changes.
Andrew White, CBA Director of Legislative Relations, confirmed that the CBA will share its draft and is working on obtaining final approval from the Legislative Policy Committee.
Commissioner Gardner moved to draft the Uniform Electronic Wills Act. Commissioner Whitfield seconded and the motion passed without objection. The commission thanked the CBA for their work on this act.