Changing with the Times? Estate Planning and Probate Litigation could be entering the future with SB1298

Admin - February 10, 2017

Senators Worsley, Borelli, McGee, Burges, Fann, and Representative Shope recently introduced a new bill that redefines the term “signature” for the purposes of your last will and testament, trust instruments, and powers of attorney. Their bill, SB1298, also offers additions that would allow for electronic recordings to be used as evidence. The additional changes could alter the way attorneys prepare legal documents, and potentially avert litigation claims arising from allegations of an improper signing.

Today, it is required that when you execute or sign legal documents such as wills, trusts, or powers of attorney, the execution or signature must most occur on a physical sheet of paper. In the current form of the proposed legislation, “’Executed or ‘Signed’ includes the use of an electronic signature.” The legislation as proposed would change the definitions of trusts and wills to include electronic trusts and wills. The definition of a writing, or to be written, under the proposal would also change and would include the use of an electronic record.

Another adjustment would alter how witnesses might view or be shown to have viewed a signing. The execution of a will today requires the signature or acknowledgment by two witnesses who personally witness the signing. The proposal would include the current standard of witnessing in person or by means of a two-way audio and videoconference. If accepted, the proposal might change the way law firms in Arizona practice. Theoretically, you could sign your will while a witness cooking dinner at home conferences in to meet the statutory requirement.

Another groundbreaking addition through the legislation is the proposed admissibility of video or other electronic recordings. With the proposed legislation, electronic evidence can be used to show:

1. proper execution of a trust or will,
2. the intentions of the testator of a will or grantor (settlor) of a trust,
3. the mental capacity of the testator or grantor (settlor) of a trust, and;
4. the authenticity of the will or trust can be shown through electronic evidence.

Those looking to sign using an electronic signature cannot do so in just any manner, however. Requirements for use accompany the new changes in legislation. The statute delineates what constitutes acceptable electronic evidence and the requirements for what will constitute an acceptable electronic format for wills, trusts, and powers of attorney.

The bill is not currently in its final form, and is still moving through the process. To follow its status, go to https://apps.azleg.gov/BillStatus/BillOverview?SessionID=117and search “SB1298” or visit the introduced version of the bill at https://apps.azleg.gov/BillStatus/GetDocumentPdf/446535.

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