SB 90-ELECTRONIC WILLS  2:16:01 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." [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 issues. 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 that Amendment 1 would correct a drafting issue and 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 about accepting wills that were computer typewritten documents because it was impossible to verify who typed it. However, handwritten wills could be written, then photographed via the person's smartphone 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." He said this would allow a handwritten will to be in electronic form. 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 later. 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. 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 use a cursive font is valid. 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 any witnesses being 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 whether she supported 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 handwrite 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. A court in another state has already addressed this issue. However, she does not have a specific 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. This bill is being brought forth 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 consider language further 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 meant 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 authenticate 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 to adopting Amendment 1. 2:43:24 PM SENATOR KIEHL objected to adopting Amendment 1. 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 cannot currently 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, multiple copies likely exist when the will is in electronic form. 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 them 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 a clear and convincing standard. She asked whether this was strictly limited to when someone 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 might 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, they 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 testator's 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. CHAIR REINBOLD asked Ms. O'Connor whether it sounded reasonable. 2:59:54 PM MS. O'CONNOR answered yes, it does. CHAIR REINBOLD found no objection and Conceptual Amendment 5 was adopted. [CHAIR REINBOLD held SB 90 in committee.]