Legislature(2021 - 2022)BUTROVICH 205
03/03/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| SB90 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 90 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 90-ELECTRONIC WILLS
2:16:30 PM
CHAIR REINBOLD reconvened the meeting and announced the
consideration of SENATE BILL NO. 90, "An Act relating to wills
and the probate of wills; relating to the making, witnessing,
self-proving, revocation, and probate of wills by electronic
means; relating to the choice of law for execution of wills;
relating to the certification of copies of wills; relating to
the establishment of the validity of a will before death; and
providing for an effective date."
2:16:56 PM
SENATOR MYERS, speaking as sponsor, said SB 90 would allow
people to sign their wills electronically.
2:18:09 PM
JOSIAH NASH, Staff, Senator Robert Myers, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor, read the
sponsor statement and sectional analysis for SB 90 as follows.
[Original punctuation provided]
In Alaska, all wills except handwritten wills must be
executed in-person with at least two witnesses
present. Current state probate legislation does not
account for the remote signing and witnessing of
wills. This can make it difficult for the elderly or
those with little resources to plan their estate. The
COVID-19 pandemic has exacerbated circumstances
surrounding traditional estate planning. The public
closure of the state's Pioneer Homes and assisted
living homes has isolated many seniors from these
services. Additional legislation is required to bring
tools utilized throughout the pandemic, such as video
conferencing, to the estate planning process.
SB 90 aims to fill the gap in probate legislation by
allowing the electronic signing and witnessing of
wills. This bill enables individuals to draft and sign
a will on a computer, tablet, or other electronic
device. Witnesses can also observe the execution of a
will through a video and audio link and do not need to
be physically present. These reforms and
modernizations will bring additional accessibility and
connectivity to a state that has many small rural
communities out of the reach of the road system.
As Alaska moves towards the future, so should our will
and probate process.
2:19:47 PM
MR. NASH read the sectional analysis of SB 90:
Section 1.
A will is defined as a document that directs how an
individual's property should be distributed or managed
after their death. This definition is expanded to
include an electronic will.
Section 2.
Electronic presence is defined as two or more
individuals in multiple locations with technology that
enables these individuals to maintain audio and visual
contact and communicate. This definition includes the
communication between individuals who have a visual,
hearing, or speech impairment. Additionally, an
electronic will is defined as a will with electronic
text and/or the electronic signature of the testator
or a witness.
Section 3.
A will disposing of personal property in any location,
or real property located in Alaska, made in or outside
of Alaska by a resident or non-resident of the state
where the property is located, is valid and admissible
to probate in Alaska if the will is a record readable
as text at the time of signing and signed by the
testator and executed under the local law of this
state, the jurisdiction where the testator was
physically present when they signed the will, or the
jurisdiction where the testator lived, either at the
time of the execution of the will or at death.
2:20:59 PM
Section 4.
Except as provided in several instances in other
sections of the statutes, a will must be a record that
is readable as text at time of signing, signed by the
testator or signed in their name by another individual
who is taking direction from the testator and in their
physical or electronic presence, and signed by at
least two individuals who are in the physical or
electronic presence of the testator at the time of
signing and sign within a reasonable time after
witnessing the signing of the will or the testator's
acknowledgment of that signature. A will that does not
comply with these requirements is valid as a
holographic will without any witnesses if signature
and material portions are in the testator's
handwriting or readable as text.
Section 5.
This section contains an oath for the testator and
witnesses of a will to proclaim before an officer
authorized to administer the oath of laws of the state
where the testator is physically present.
This section contains an oath similar to the oath in
Sec. 5 but is for use after the execution of a will
to retroactively self-prove it.
Section 6.
This section contains an oath similar to the oath in
Sec. 5 but is for use after the execution of a will
to retroactively self-prove it.
Section 7.
Except as provided in another section of the
statutes, a will is valid if executed in compliance
with the law at the time of execution of the place
where the will is executed, which is the place where
the testator is physically present while signing the
will, or the laws of the place where the testator
abodes at time of death.
Section 8.
A will or a section of a will is revoked by executing
another will that overwrites the previous will, or by
the testator destroying or deleting the will themself
or with the aid of another individual acting at their
direction.
2:22:41 PM
Section 9.
An individual can make a paper copy of their will by
taking an oath that copy is true and accurate. If the
will is self-proving, the copy must include the self-
proving affidavits.
Section 10.
A petition to the court to determine whether a trust
is valid and enforceable before a settlor's death
must contain:
1. A statement that a copy (may be electronic
copy) of the will has been filed with the
court.
2. A statement that the will is in writing or is
an electronic will.
3. A statement that the will was signed by the
testator or by another individual at the
testator's direction in the physical or
electronic presence of the testator.
4. In the case of a witnessed will, a statement
that the will was signed by at least two
individuals, each of whom signed within a
reasonable amount of time after witnessing the
singing of the will or the testator
acknowledgment of the signature on the will.
5. In the case of a holographic will, a statement that
the signature and material portions are in the
testator's handwriting or a record readable as
text.
6. A statement that the will is executed with the
testator's intent.
7. A statement that the testator had legal and mental
capacity.
8. A statement that the testator was free from
undue influence and duress.
9. A statement that the will was not executed
fraudulently or mistakenly.
10. Names and addresses of the testator,
testator's spouse, testator's children,
testator's heirs, personal representative
nominated in the will, and the devices of the
will.
11. If minors, the ages of the testator's
children, the testator's heirs, and the
devisees under the will, as far as known or
ascertainable with reasonable diligence by
the petitioner.
12. A statement that the will has not been
revoked of modified.
13. A statement that the testator is familiar
with the contents of the will.
2:24:46 PM
Section 11.
Applications for informal probate or appointment
shall be directed to the registrar and verified by
the applicant to be true to the applicant's best
knowledge as to the following information:
1. Every application for informal probate of a will
or for informal appointment of a personal
representative other than a special or successor
representative, must contain the following.
a. A statement of interest of the applicant.
b. The name and age of the decedent, decedent
death date, the judicial district, and the
state of the decedent's domicile at the time of
death, and the names and addresses of the
spouse, children, heirs, and devisees and ages
of any who are minors ascertainable with
reasonable diligence by the applicant.
2:25:50 PM
c. If decedent was not living in the state at the
time of death, a statement showing venue.
d. A statement identifying the address of any
personal representative of the decedent
appointed in this state of elsewhere whose
appointment has not been terminated.
e. A statement indicating whether the applicant
has received a demand for notice of any
probate or appointment proceeding concerning
the decedent that may have been filed in this
state or elsewhere.
f. A statement that the time limit for informal
probate has not expired either because three
years or less have passed, that circumstances
as described by the statutes, authorizing
tardy probate or appointment have occurred.
2. An application for informal probate of a will
must state the following in addition to the
aforementioned statements:
a. Original of the decedent's will or a paper
copy of the will is in the possession of the
court, or accompanies the application, or that
an authenticated copy or a will probated in
another jurisdiction accompanies the
application.
b. To the best of the applicant's knowledge,
believes the will to have been validly
executed.
c. After the exercise of reasonable diligence,
the applicant is unaware of and instrument
revoking the will, and that the applicant
believes that the instrument that is the
subject of the application is the decedent's
will.
2:27:19 PM
3. Application for informal appointment of a
personal representative to administer an estate
under a will must describe the will by date of
signing and state the time and place of probate
or the pending application or petition for
probate. Application for appointment must adopt
the statements in the application or petition for
probate and sate the name address and priority
for appointment of the person whose appointment
is sought.
4. An application for informal appointment of an
administer in intestacy must state in addition to
the statements required by section one as
aforementioned.
a. After reasonable diligence, the applicant is
unaware of any unrevoked testamentary
instrument relating to property having a situs
in this state under statutes, or statement why
any such instrument of which the applicant may
be aware is not being probated.
b. Priority of the person whose appointment is
sought and the names of any other persons
having prior or equal right to the appointment.
2:28:35 PM
5. Application for appointment of a personal
representative to succeed a personal
representative appointed under a different
testacy status must refer to the order in the
most recent testacy proceeding. The application
must state the name and address of the person
whose appointment is sought and of the person
whose appointment will be terminated if the
application is granted and describe the priority
of the applicant.
6. Application for appointment of a personal
representative to succeed a personal
representative who has tendered a resignation as
provided in the statutes, or whose appointment
has been terminated by death or removal, must
adopt the statements in the application or
petition that led to the appointment of that
person being succeeded except as specifically
changed or corrected. They must state the name
and address of the person who seeks appointment
as successor and describe the priority of the
applicant.
2:29:37 PM
Section 12.
In an informal proceeding for original probate of a
will, the registrar shall determine whether: the
application is complete; the applicant has made oath
or affirmation and that the statements in the
application are true; the applicant appears from the
application to be an interested person; the venue is
proper; on original or a paper copy, of the decedent's
executed and unrevoked will is in the registrar's
possession; any notice required by the statutes has
been given and that the application expressly revokes
the earlier application; and it appears from the
application that the time limit for the original
probate has not expired.
Section 13.
Petitions for formal probate of a will, or for
adjunction of intestacy with or without request for
appointment of a personal representative, must be
directed to the court, request a judicial order after
notice and hearing, and contain further statements as
indicated in this section. A petition for formal
probate of a will must: request an order as to the
testacy of the decedent in relation to a particular
instrument which may or may not have been informally
probated and determining the heirs; contain statements
required for informal applications as stated in the
statutes; and state whether an original or paper copy
of the will of the decedent is in the possession of
the court or accompanies the petition.
Section 14.
If the original will or a paper copy is neither is the
possession of the court nor accompanies the petition
and no authenticated copy of a will probated in
another jurisdiction accompanies the petition, the
petition also must state the contents of the will, and
indicate that it is lost, destroyed, or otherwise
unavailable.
Section 15.
This Act applies to a will that is executed on or
after the effective date of this Act. In this section,
"will" has the meaning given in AS 13.06.050.
Section 16.
This act takes place immediately.
2:32:44 PM
SENATOR MYERS said this bill would allow people to sign their
wills remotely. He expressed his interest in preserving that
concept as the bill goes through the process but anticipated the
committee would make some minor changes.
2:33:41 PM
SENATOR SHOWER referred to the language in Section 4 that
establishes a reasonable time after witnessing the signing of
the will. He asked for clarification of what that meant.
MR. NASH answered that he would research this and report back to
the committee. He said that language is existing law and does
not change in the bill.
SENATOR SHOWER referred to Section 6. He asked how to avoid
coercion from occurring. He asked how these changes comport with
other states' laws and whether it will create any conflicts.
SENATOR MYERS answered that this bill is based on language from
the Uniform Law Commission. He related that similar language is
being considered in 30 states. He reported that another dozen
states have already addressed this by executive order. He said
he did not anticipate any interstate issues to arise. He
deferred to his staff to respond to duress or coercion.
2:37:26 PM
MR. NASH related his understanding that current law has
procedures for asserting duress. He deferred to Mr. Blattmachr
to respond further.
SENATOR SHOWER asked the sponsor to report what other states are
doing.
2:39:35 PM
MATTHEW BLATTMACHR, Attorney, Peak Trust Company, Anchorage,
Alaska, answered that current law has remedies if someone
believes duress occurred when a will was signed. One requirement
of any witness is to exercise his/her judgment as to if duress
exists, he said. The person executing the will would need to
make the witnesses comfortable that no duress or coercion
exists. This bill does not provide any additional remedy. He
said he is not aware of any additional remedies in any other
state. However, there is not any erosion of existing rules to
combat these concerns.
2:41:05 PM
SENATOR SHOWER said people could say they are not under duress,
but it could still happen. He asked if there was anything that
might provide some level of security.
MR. BLATTMACHR acknowledged that he raised a legitimate concern.
He related that the group that drafted this bill and the Uniform
Law Commission had thought this through. He said some things are
unique to Alaska, so it may be possible to address his concern.
However, nothing currently addresses this issue for wills that
must be witnessed in person. He said, "There is no perfect
remedy for stopping bad actors." He agreed that under current
law, someone could be put under duress. He offered a willingness
to look at creative solutions. He related that existing
protections under Alaska law would also apply to wills.
2:43:54 PM
SENATOR SHOWER expressed an interest in obtaining any
information on duress.
SENATOR MYERS offered to research it further and report back to
the committee.
2:44:06 PM
SENATOR HUGHES referred to Section 4 related to holographic
wills. She explained that holographic wills are ones where a
person handwrites their will while alone. This bill would allow
this to be read as text. She could envision an image of a
holographic will being used but cautioned against using a typed
document, which could be typed by someone other than the person
writing their will. She asked for the protections and
clarification.
2:45:15 PM
MR. NASH said the sponsor also noticed this and planned to
address it. He offered to research it further.
2:46:01 PM
MR. BLATTMACHR responded that the intent of the language, "[(1)]
a record that is readable as text ...," refers to text on any
electronic device, or a printed piece of paper. The holographic
will is different than an electronic will in the sense that the
holographic will is verbally dictated. The electronic will would
be documented albeit electronically via text. He deferred to Ms.
O'Connor, one of the principal drafters of the bill, to respond.
2:47:23 PM
SENATOR HUGHES related her understanding that a holographic will
is one that could be verbally dictated but it could also be
handwritten. She stated the language read "in the testator's
writing or readable as a text." She surmised that if the audio
were accompanied by a typed text, it would be fine. She
expressed concern that the typed text would be a holographic
will. She asked if it must be accompanied by an audio recording,
a handwritten document, or an image of a handwritten document.
MR. BLATTMACHR explained that the text from an electronic will
would have to be witnessed. Whether it was orally dictated and
recorded via text, it would become an electronic will that would
require the witness. He suggested that may address part of her
concern.
2:48:52 PM
SENATOR HUGHES stated that a holographic will is one that does
not require signature witnesses. For example, if someone were
dying alone at a cabin and hand-wrote their will on a piece of
paper, it would be honored as a will. She asked if Alaska had
that provision.
MR. BLATTMACHR answered yes. He offered to discuss this outside
of the committee or have Ms. O'Connor respond at a future
meeting rather than add confusion.
2:49:56 PM
CHAIR REINBOLD agreed that was an important issue to get
resolved.
2:50:00 PM
SENATOR KIEHL acknowledged that not every state has a provision
for holographic wills. He referred to Section 8 of SB 90 that
provides the ability to revoke by deleting. He offered that most
of the acts in this section that physically revoke the will are
easily understood. It is easily understood if a person were to
burn their will, tear it up, or write the word "cancel" on it.
However, an electronic file may contain multiple copies and the
person could delete one. However, another file would still
exist, or the person could decide to delete their copy after
having e-mailed it to their children. He asked if deleting a
document provides evidence of an intent to revoke it, if it must
be done through an online will service, or if the person could
delete it and confirm that action via an email.
MR. NASH offered to research this and respond back to the
committee. He related his understanding that other states use a
service or law firm.
[SB 90 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Resumes for Alaska State Commission for Human Rights.pdf |
SJUD 3/3/2021 1:30:00 PM |
Resumes-Alaska State Commission For Human Rights |
| Resumes for Violent Crimes Compensation Board.pdf |
SJUD 3/3/2021 1:30:00 PM |
Resumes for Violent Crimes Compensation Board |
| SB90 Sectional Analysis.pdf |
SJUD 3/3/2021 1:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 90 |
| SB90 Sponsor Statement.pdf |
SJUD 3/3/2021 1:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 90 |
| SB90 Supporting Documentation Electronic Wills Research.pdf |
SJUD 3/3/2021 1:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 90 |
| SB90A.PDF |
SJUD 3/3/2021 1:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 90 |