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.]