Legislature(2021 - 2022)BUTROVICH 205
03/15/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
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| Start | |
| Briefing: Lawsuit on Governor Appointees | |
| SB90 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 90 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
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.]
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