Legislature(2021 - 2022)BUTROVICH 205

03/15/2021 01:30 PM JUDICIARY

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Audio Topic
01:35:43 PM Start
01:36:37 PM Briefing: Lawsuit on Governor Appointees
02:16:01 PM SB90
03:01:34 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Lawsuit on Governor's Appointees TELECONFERENCED
Megan Wallace, Legislative Legal
+= SB 90 ELECTRONIC WILLS TELECONFERENCED
Heard & Held
-- Invited & Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+ Consideration of Governor's Appointees TELECONFERENCED
-- Public Testimony --
                     SB 90-ELECTRONIC WILLS                                                                                 
2:16:01 PM                                                                                                                    
CHAIR  REINBOLD reconvened  the  meeting and  announced that  the                                                               
business before  the committee would  be 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."  [The bill                                                               
was last heard on March 3, 2021.]                                                                                               
                                                                                                                                
2:16:13 PM                                                                                                                    
SENATOR MYERS recapped the reason  for introducing SB 90. He said                                                               
it became  apparent during the  pandemic that people  were afraid                                                               
of  public  contact.  Although people  could  write  their  wills                                                               
online, notarizing or witnessing them  must be done in person. SB
90 would allow people to  notarize and witness their wills online                                                               
via  Zoom or  some  other platform.  This  process would  require                                                               
verification  of  the person's  identity  to  execute their  will                                                               
remotely.                                                                                                                       
                                                                                                                                
2:17:24 PM                                                                                                                    
SENATOR HUGHES asked if he  had considered any recommendations by                                                               
the Uniform  Law Commission (ULC).  She surmised that  all states                                                               
must  wrestle  with  these issue.  She  acknowledged  that  ULC's                                                               
recommendations might  need to be customized  to address Alaska's                                                               
needs.                                                                                                                          
                                                                                                                                
SENATOR  MYERS answered  that this  bill was  based on  ULC model                                                               
legislation for wills. He acknowledged  a dozen or so states have                                                               
passed similar legislation  and another 25 states  are working to                                                               
adopt changes.                                                                                                                  
                                                                                                                                
2:18:25 PM                                                                                                                    
SENATOR  HUGHES  advised  members  and the  public  that  ULC  is                                                               
comprised  of  attorneys  from  each  state  that  specialize  in                                                               
specific areas of law. She offered  her view that ULC is always a                                                               
good resource.                                                                                                                  
                                                                                                                                
2:19:27 PM                                                                                                                    
SENATOR  MYERS  moved  to  adopt Amendment  1,  [work  order  32-                                                               
LS0501\B.1], which read:                                                                                                        
                                                                                                                                
                                                   32-LS0501\B.1                                                                
                                                       Bannister                                                                
                                                         3/5/21                                                                 
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
                                                                                                                                
 OFFERED IN THE SENATE                        BY SENATOR MYERS                                                                  
                                                                                                                                
                                                                                                                                
     Page 3, lines 4 - 5:                                                                                                       
          Delete "or readable as text"                                                                                      
          Insert ", which may be in electronic form"                                                                        
                                                                                                                                
     Page 7, lines 5 - 6:                                                                                                       
          Delete "or in a record that is readable as text"                                                                  
          Insert ", which may be in electronic form"                                                                        
                                                                                                                                
CHAIR REINBOLD objected for discussion purposes.                                                                                
                                                                                                                                
2:19:33 PM                                                                                                                    
SENATOR  MYERS explained  Amendment  1 would  correct a  drafting                                                               
issue and also address an issue  Senator Kiehl raised at the last                                                               
bill  hearing.  Amendment 1  relates  to  the bill  section  that                                                               
addresses holographic  wills. In Alaska, technology  is often not                                                               
available  so  many  people handwrite  their  wills.  The  courts                                                               
currently recognize  those wills. Amendment 1  would allow people                                                               
to  use   electronically  witnessed  wills.  There   was  concern                                                               
expressed about  accepting wills  that were  computer typewritten                                                               
documents because  it was  not possible to  verify who  typed it.                                                               
However, handwritten  wills could  be written,  then photographed                                                               
via the person's  smart phone to help preserve the  record of the                                                               
will. This is  especially important since papers can  get lost or                                                               
easily be  degraded. Amendment 1  would clarify this  by removing                                                               
language that the  will was electronic "or readable  as text" and                                                               
replace it  with "which  may be in  electronic form."  This would                                                               
allow a handwritten will to be in electronic form, he said.                                                                     
                                                                                                                                
2:21:14 PM                                                                                                                    
CHAIR  REINBOLD   noted  that  the  Legislative   Legal  Services                                                               
(Legislative Legal)  attorney was not online.  She suggested that                                                               
the legal drafter might need to participate at a later date.                                                                    
                                                                                                                                
2:21:31 PM                                                                                                                    
SENATOR  HUGHES said  she shared  the  concern about  handwritten                                                               
wills.  She wanted  to  make sure  an image  or  photograph of  a                                                               
holographic will would be acceptable.  She expressed concern that                                                               
the  language, "which  may be  in electronic  form." might  still                                                               
allow a will to be an  electronic word document or PDF. She asked                                                               
why the language does not refer to an image in electronic form.                                                                 
                                                                                                                                
2:22:54 PM                                                                                                                    
SENATOR MYERS  said the language  in [AS 13.12.502(b)] of  SB 90,                                                               
immediately preceding the language  in Amendment 1, requires that                                                               
the signature  and material  portions of the  record must  be "in                                                               
the testators handwriting"  or "readable as text."  The intent is                                                               
to preserve the  person's handwritten will in  electronic form so                                                               
that concern has been addressed.                                                                                                
                                                                                                                                
SENATOR  HUGHES stated  she did  not realize  that "or"  had been                                                               
removed.                                                                                                                        
                                                                                                                                
2:23:49 PM                                                                                                                    
SENATOR KIEHL expressed  concern that if handwriting  could be in                                                               
electronic form,  it could allow  someone to use a  cursive font.                                                               
The  technology  to  do  so  is  currently  available.  In  fact,                                                               
replicating  handwriting may  be  enhanced  by future  algorithms                                                               
such  that  a  person  could  write  a  letter  in  their  great-                                                               
grandfather's script. He asked if  anything would prevent someone                                                               
from typing in a font replicating a person's handwriting.                                                                       
                                                                                                                                
SENATOR MYERS acknowledged  that it does not but if  so, it could                                                               
be challenged. He said a  font would reproduce things exactly but                                                               
a person's handwriting  is never exact. He offered  his view that                                                               
a   handwriting  expert   could  challenge   it.  After   briefly                                                               
consulting  with  staff,  Josiah  Nash, he  deferred  to  Abigail                                                               
O'Connor to respond.                                                                                                            
                                                                                                                                
2:27:02 PM                                                                                                                    
ABIGAIL O'CONNOR, Attorney, O'Connor  Law Office, LLC, Anchorage,                                                               
Alaska,  said  she helped  draft  the  language  for SB  90.  She                                                               
provided  some background  information on  the holographic  wills                                                               
and what  was envisioned  with SB 90.  Currently, a  person could                                                               
write out  their will  and sign  it, which  would be  legal. This                                                               
bill  would  allow  someone  to  write their  will  on  a  tablet                                                               
computer using  a stylus. She  acknowledged that  Senator Kiehl's                                                               
concern that someone might to use  a cursive font is a valid one.                                                               
It  certainly  could happen  as  technology  improves, she  said.                                                               
However, Senator Myers  is also correct that  the authenticity of                                                               
the  will  may  arise  but  that issue  could  be  challenged  in                                                               
probate. Without witnesses present, it  is difficult to know with                                                               
any  certainty  who wrote  and  signed  a holographic  will.  For                                                               
example,  a person  may have  written  and signed  their will  at                                                               
gunpoint. Although this  change would allow one  more aspect that                                                               
could  be  challenged,  it  is  already  an  issue  that  can  be                                                               
challenged. However, Alaska statutes allow for it, she said.                                                                    
                                                                                                                                
2:29:25 PM                                                                                                                    
SENATOR KIEHL  agreed that holographic wills  are challenging and                                                               
risky.  He offered  his  view  that the  core  of  bill is  good.                                                               
However,  it  may need  "future  proofing."  He  said he  is  not                                                               
comfortable with this amendment.                                                                                                
                                                                                                                                
2:29:54 PM                                                                                                                    
SENATOR REINBOLD  said she was  unsure if she  supports Amendment                                                               
1.                                                                                                                              
                                                                                                                                
2:30:18 PM                                                                                                                    
MS. O'CONNOR,  after conferring with her  colleague, suggested it                                                               
might  be possible  to develop  a definition  for handwriting  or                                                               
other language  that would  still allow  holographic wills  to be                                                               
updated.                                                                                                                        
                                                                                                                                
2:31:21 PM                                                                                                                    
SENATOR HUGHES suggested  adding a sunset provision  to the bill,                                                               
which would allow the legislature to revisit the matter.                                                                        
                                                                                                                                
SENATOR MYERS stated  his preference would be  to adopt Amendment                                                               
1,  then  develop another  amendment  to  be  taken up  later  to                                                               
further address holographic wills in readable text.                                                                             
                                                                                                                                
SENATOR KIEHL said  he would likely oppose  Amendment 1. However,                                                               
he would like to continue to work on the issue.                                                                                 
                                                                                                                                
SENATOR  SHOWER expressed  concern about  artificial intelligence                                                               
since  mimicking  someone's  writing  can  already  be  done.  He                                                               
suggested tabling Amendment 1 or revising it.                                                                                   
                                                                                                                                
2:33:32 PM                                                                                                                    
SENATOR HUGHES  argued that if artificial  intelligence can mimic                                                               
a holographic will, it could also be  used to create a copy of an                                                               
original paper will. She suggested the  goal of Amendment 1 is to                                                               
minimize  the chance  of forging  a will  written in  an MS  Word                                                               
document or  PDF. Currently, a  person can hand write  their will                                                               
or  a bad  actor can  produce one  with a  computer. Amendment  1                                                               
allows for  an image of  that document. The probate  process will                                                               
determine  its authenticity,  she said.  She offered  her support                                                               
for Amendment 1.                                                                                                                
                                                                                                                                
2:34:23 PM                                                                                                                    
CHELSEA RIEKKOLA,  Attorney, Foley & Pearson,  Anchorage, Alaska,                                                               
pointed out she  has worked on legislation to  update wills based                                                               
on the Uniform  Law Commission model legislation.  This issue has                                                               
already been addressed by a  court in another state. However, she                                                               
does  not  have  the  cite  before  her.  She  related  the  case                                                               
pertained  to a  will  written and  signed using  a  stylus on  a                                                               
Samsung Galaxy  phone. The  court determined  that this  will was                                                               
valid. She  recognized that while  future proofing  is preferred,                                                               
she was unsure that every  facet could be anticipated. One reason                                                               
this   bill  is   being  brought   forth  is   to  increase   the                                                               
accessibility to  estate planning  in Alaska. This  is especially                                                               
important for people  in remote areas who may not  have access to                                                               
a lawyer, witnesses or a notary.                                                                                                
                                                                                                                                
2:36:28 PM                                                                                                                    
SENATOR  REINBOLD  asked if  this  language  is essential  or  if                                                               
Amendment 1 could  be tabled. She suggested that  further work is                                                               
needed on Amendment 1.                                                                                                          
                                                                                                                                
2:36:57 PM                                                                                                                    
MS.  RIEKKOLA expressed  her interest  in passing  the bill  with                                                               
language that recognizes a holographic  will. She deferred to Ms.                                                               
O'Connor.                                                                                                                       
                                                                                                                                
2:37:29 PM                                                                                                                    
MS.  O'CONNOR said  the language  in Amendment  1 was  their best                                                               
attempt at language  to recognize a will in  electronic form. She                                                               
suggested  that the  language in  [AS  13.12.502(b)(1)] is  broad                                                               
enough  to capture  this goal.  She offered  to further  consider                                                               
language or  develop a definition.  However, sometimes  an effort                                                               
to try to solve one  problem creates another. She appreciated the                                                               
concerns raised, yet these issues  already exist with holographic                                                               
wills. In her experience, holographic  wills are not that common.                                                               
Thus, she did not  view this as a huge problem.  Most of the time                                                               
people have  their wills witnessed,  she said. Amendment  1 would                                                               
allow for an image of a  handwritten will to suffice. She was not                                                               
certain if that means that someone  could write their will with a                                                               
stylus.  She was  unsure what  constitutes an  image and  if this                                                               
language  captures the  intent. However,  she stated  her support                                                               
for Amendment 1, as written.                                                                                                    
                                                                                                                                
2:40:04 PM                                                                                                                    
SENATOR SHOWER pointed  out that Federal Express  [FedEx] and the                                                               
US Postal  Service (USPS) tracks and  authenticates its packages.                                                               
He asked whether multi-authentication could solve this problem.                                                                 
                                                                                                                                
SENATOR  KIEHL  suggested  that   those  with  access  to  multi-                                                               
authentication  tracking will  likely have  access to  lawyers or                                                               
witnesses. Holographic  wills allow someone alone  in a trapper's                                                               
cabin who  wants to write  their will  to do so.  He acknowledged                                                               
that  this tool  serves a  valuable  purpose. At  the same  time,                                                               
holographic wills  pose risks,  he said.  He maintained  his view                                                               
that holographic  wills should be  limited to  actual handwriting                                                               
to limit the risk of fraud.                                                                                                     
                                                                                                                                
SENATOR  HUGHES remarked  that while  the committee  has concerns                                                               
about  artificial intelligence,  more  and more  schools are  not                                                               
even teaching handwriting  so it is likely that  the future trend                                                               
will phase out written wills and phase in typewritten wills.                                                                    
                                                                                                                                
2:42:20 PM                                                                                                                    
SENATOR MYERS argued that not  passing Amendment 1 will leave the                                                               
bill in worse  shape. He expressed appreciation  for the concerns                                                               
and issues  raised but  those issues could  be considered  as the                                                               
bill moves forward.                                                                                                             
                                                                                                                                
2:43:19 PM                                                                                                                    
CHAIR REINBOLD removed her objection.                                                                                           
                                                                                                                                
2:43:24 PM                                                                                                                    
SENATOR KIEHL objected.                                                                                                         
                                                                                                                                
2:43:27 PM                                                                                                                    
A roll  call vote was  taken. Senators Shower, Hughes,  Myers and                                                               
Reinbold voted  in favor of  Amendment 1 and Senator  Kiehl voted                                                               
against it. Therefore, Amendment 1 passed by a 4:1 vote.                                                                        
                                                                                                                                
CHAIR REINBOLD stated that Amendment 1 was adopted.                                                                             
                                                                                                                                
2:44:17 PM                                                                                                                    
SENATOR  MYERS  moved  to  adopt Amendment  2,  [work  order  32-                                                               
LS0501\B.2], which read:                                                                                                        
                                                   32-LS0501\B.2                                                                
                                                       Bannister                                                                
                                                         3/5/21                                                                 
                                                                                                                                
                          AMENDMENT 2                                                                                       
                                                                                                                                
                                                                                                                                
      OFFERED IN THE SENATE                    BY SENATOR MYERS                                                                 
                                                                                                                                
                                                                                                                                
     Page 6, lines 25 - 26:                                                                                                     
         Delete "the copy may be an electronic record;"                                                                     
          Insert "the copy of the will may be a paper copy                                                                  
     of an electronic will certified under AS 13.12.518;"                                                                   
                                                                                                                                
                                                                                                                                
CHAIR REINBOLD objected for discussion purposes.                                                                                
                                                                                                                                
SENATOR MYERS  said Amendment  2 was drafted  based on  ULC model                                                               
legislation. He explained that this  would allow someone to elect                                                               
to electronically  file a copy of  their will with the  court. He                                                               
related his understanding that the court  system is not set up to                                                               
accept electronic  filings at this  time. However,  parties could                                                               
file a  paper copy  of their  wills with  the court.  Amendment 2                                                               
would  allow people  to write  their  wills electronically,  then                                                               
file a paper copy of the will with the court.                                                                                   
                                                                                                                                
2:45:40 PM                                                                                                                    
NANCY  MEADE, General  Counsel, Alaska  Court System,  Anchorage,                                                               
Alaska,  deferred  to  the  probate  experts  on  the  merits  of                                                               
Amendment  1.  With  respect  to  Amendment  2,  as  the  sponsor                                                               
mentioned, the court  system does not currently  have the ability                                                               
to accept or store electronic  wills. However, people can certify                                                               
a copy of their wills. The  court system could store that filing,                                                               
she said.                                                                                                                       
                                                                                                                                
2:46:32 PM                                                                                                                    
CHAIR REINBOLD removed her objection.                                                                                           
                                                                                                                                
There being no further objection, Amendment 2 was adopted.                                                                      
                                                                                                                                
2:46:44 PM                                                                                                                    
SENATOR KIEHL withdrew Amendment 3, [work order 32-LS0501\B.5].                                                                 
                                                                                                                                
2:47:23 PM                                                                                                                    
SENATOR KIEHL  made a  motion to adopt  Amendment 4,  [work order                                                               
32-LS\0501\B.6] which read:                                                                                                     
                                                   32-LS0501\B.6                                                                
                                                       Bannister                                                                
                                                         3/5/21                                                                 
                                                                                                                                
                          AMENDMENT 4                                                                                       
                                                                                                                                
                                                                                                                                
     OFFERED IN THE SENATE                     BY SENATOR KIEHL                                                                 
                                                                                                                                
                                                                                                                                
     Page 6, line 5, following "direction;":                                                                                    
          Insert "if the revocatory act is performed on an                                                                  
      electronic will, the evidence to show the testator's                                                                  
     intent and purpose must be clear and convincing;"                                                                      
                                                                                                                                
CHAIR REINBOLD objected for discussion purposes.                                                                                
                                                                                                                                
SENATOR  KIEHL explained  that Amendment  4  relates to  revoking                                                               
wills. The classic action of revoking  a will would be to tear it                                                               
up or burn  it. However, when the will is  in electronic form, it                                                               
is likely that  multiple copies exist. The question  arises as to                                                               
what it means if some copies  are deleted but others still exist.                                                               
Further,  questions arise  as to  how to  determine the  person's                                                               
intent. Amendment  4 would  place a  higher standard  on revoking                                                               
wills by requiring a clear  and convincing standard rather than a                                                               
preponderance of the evidence. For  example, someone could use an                                                               
online service that  requires the person to click  three times to                                                               
verify their desire to revoke the will.                                                                                         
                                                                                                                                
2:49:28 PM                                                                                                                    
SENATOR MYERS offered his support for Amendment 4.                                                                              
                                                                                                                                
SENATOR HUGHES asked if Ms.  O'Connor could indicate if the clear                                                               
and convincing standard would cause any problems.                                                                               
                                                                                                                                
MS.  O'CONNOR  said she  was  not  able  to view  the  amendments                                                               
online. While  she has not  reviewed Amendment 4,  she understood                                                               
the language  would add  the clear  and convincing  standard. She                                                               
asked whether this was strictly  limited to when a person deletes                                                               
their will.                                                                                                                     
                                                                                                                                
SENATOR  KIEHL answered  that Amendment  4 relates  to revocatory                                                               
acts  [in  Section  8]  on  page 6.  If  the  revocatory  act  is                                                               
performed  on  an  electronic  will, the  evidence  to  show  the                                                               
testator's intent must be clear and convincing.                                                                                 
                                                                                                                                
2:51:24 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
2:52:38 PM                                                                                                                    
CHAIR REINBOLD reconvened the meeting. She read Amendment 4:                                                                    
                                                                                                                                
     Page 6, line 5, following "direction;":                                                                                    
          Insert "if the revocatory act is performed on an                                                                  
      electronic will, the evidence to show the testator's                                                                  
     intent and purpose must be clear and convincing;"                                                                      
                                                                                                                                
2:53:18 PM                                                                                                                    
MS. O'CONNOR informed members that  she just received Amendment 4                                                               
by email. After conferring via  text messaging with Ms. Riekkola,                                                               
she  said their  immediate  reaction was  that  this may  already                                                               
apply in practice. She suggested  that the express requirement in                                                               
the  statute for  deleting  a will  should apply  to  all of  the                                                               
revocatory  acts for  paper and  electronic  wills. The  industry                                                               
would like to avoid creating  different standards for paper wills                                                               
and electronic wills.  She said she does not  object to requiring                                                               
clear and  convincing language be  applied for  burning, tearing,                                                               
canceling, obliterating, destroying or  deleting wills so long as                                                               
it applies to all wills.                                                                                                        
                                                                                                                                
2:55:31 PM                                                                                                                    
SENATOR MYERS said that is a  good point. He said he may consider                                                               
offering a conceptual amendment.                                                                                                
                                                                                                                                
2:55:55 PM                                                                                                                    
SENATOR   KIEHL   said   that  revocatory   acts   are   somewhat                                                               
problematic. The  best thing  a person could  do to  revoke their                                                               
will is to do so in writing and  then replace it with a new will.                                                               
Since revocatory  acts are allowable,  it could leave  the person                                                               
without a will. He did not  recall any ULC proceedings related to                                                               
this, but Ms. O'Connor's suggestion makes a lot of sense to him.                                                                
                                                                                                                                
2:56:51 PM                                                                                                                    
SENATOR MYERS moved to adopt  a Conceptual Amendment to Amendment                                                               
4  to remove  "on an  electronic will"  to ensure  that it  would                                                               
apply to all wills.                                                                                                             
                                                                                                                                
SENATOR KIEHL  agreed with the Conceptual  Amendment to Amendment                                                               
4  but suggested  it  should  apply to  "revocatory  acts on  all                                                               
wills."                                                                                                                         
                                                                                                                                
SENATOR HUGHES objected for discussion purposes.                                                                                
                                                                                                                                
SENATOR MYERS revised  the Conceptual Amendment 1  to Amendment 4                                                               
to read,  "If the  revocatory act is  performed, the  evidence to                                                               
show  the  testators  intent  and   purpose  must  be  clear  and                                                               
convincing."                                                                                                                    
                                                                                                                                
2:57:43 PM                                                                                                                    
MS. O'CONNOR suggested on page 6,  line 3, after the word intent,                                                               
to add "prove  by clear and convincing evidence." She  said it is                                                               
the intent that needs to be proved.                                                                                             
                                                                                                                                
2:58:26 PM                                                                                                                    
SENATOR MYERS withdrew Conceptual Amendment 1 to Amendment 4.                                                                   
                                                                                                                                
2:58:44 PM                                                                                                                    
SENATOR KIEHL withdrew Amendment 4.                                                                                             
                                                                                                                                
2:59:19 PM                                                                                                                    
SENATOR  KIEHL moved  to adopt  Conceptual Amendment  5, that  in                                                               
Section 8,  the intent  for revocatory  acts must  be shown  by a                                                               
clear and  convincing standard. He deferred  to Legislative Legal                                                               
Services to make the necessary changes.                                                                                         
                                                                                                                                
[The  committee  treated  it  as   though  someone  objected  for                                                               
discussion purposes.]                                                                                                           
                                                                                                                                
CHAIR REINBOLD asked Ms. O'Connor whether it sounded reasonable.                                                                
                                                                                                                                
2:59:54 PM                                                                                                                    
MS. O'CONNOR answered yes, it does.                                                                                             
                                                                                                                                
There  being no  further  objection, Conceptual  Amendment 5  was                                                               
adopted.                                                                                                                        
                                                                                                                                
[SB 90 was held in committee.]                                                                                                  

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