Legislature(2021 - 2022)BUTROVICH 205
03/15/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| 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 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 15, 2021
1:35 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
BRIEFING: LAWSUIT ON GOVERNOR APPOINTEES
- HEARD
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."
- HEARD & HELD
CONFIRMATION HEARING(S):
Commission on Judicial Conduct
Aldean Kilbourn - Fairbanks
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 90
SHORT TITLE: ELECTRONIC WILLS
SPONSOR(s): SENATOR(s) MYERS
02/22/21 (S) READ THE FIRST TIME - REFERRALS
02/22/21 (S) JUD, L&C
03/03/21 (S) JUD AT 1:30 PM BUTROVICH 205
03/03/21 (S) Heard & Held
03/03/21 (S) MINUTE(JUD)
03/15/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
MEGAN WALLACE, Director
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Provided a briefing on the lawsuit on
governor appointees.
ABIGAIL O'CONNOR, Attorney
O'Connor Law Office, LLC
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 90.
CHELSEA RIEKKOLA, Attorney
Foley & Pearson
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 90.
NANCY MEADE, General Counsel
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 90.
ACTION NARRATIVE
1:35:43 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present at the call to
order were Senators Kiehl, Myers, Hughes, Shower, and Chair
Reinbold.
^BRIEFING: Lawsuit on Governor Appointees
BRIEFING: Lawsuit on Governor Appointees
1:37:12 PM
CHAIR REINBOLD announced the consideration of a briefing on the
Lawsuit on Governor Appointees.
1:37:42 PM
MEGAN WALLACE, Director, Legislative Legal Services, Legislative
Affairs Agency, Juneau, Alaska, began a briefing on the ongoing
and pending lawsuit between the Legislative Council and Governor
Dunleavy regarding governor appointees that happened during the
regular session last year.
MS. WALLACE provided background information. In March 2020, the
legislature did not meet in joint session to confirm governor
appointees due to public health concerns related to COVID-19.
Instead, the legislature passed House Bill 309, which extended
the legislature's timeframe to meet in joint session to confirm
governor appointees to 30 days upon expiration of the governor's
March 2020 disaster declaration. Since the governor's disaster
declaration expired on November 15, 2020, that means that the
governor appointees expired 30 days later under the bill. One
provision in the bill stated that if the legislature did not
confirm the appointments, it would be tantamount to declination.
She reported that 30 days after the March 2020 disaster
declaration expired, the governor issued a letter to the
presiding officers stating he would extend the appointments of
the pending appointees. Governor Dunleavy indicated that he
considered their appointments valid, so appointees could
continue to serve.
MS. WALLACE stated that based on that letter, Legislative
Council voted to file a lawsuit asking the court to enforce the
provisions of House Bill 309 and the existing statute, AS
39.05.080. The Legislative Council sought a preliminary
injunction to stop the appointees from acting from December 15,
2020, through the beginning of the 32nd Legislative session,
which convened on January 19, 2021. The Juneau Superior Court
denied Legislative Council's request for a preliminary
injunction. However, ruling was not on the merits of the case,
so the matter proceeded through the Superior Court. Since the
matter is related to substantive legal issues and no disputes of
fact, the case went directly to summary judgment briefing. After
extensive briefing, on February 18, Judge Pallenberg issued a
summary judgment opinion, ruling that the governor appointments
expired and were tantamount to declination on December 15, 2020.
Further, the court ruled that the governor lacked the legal
authority to extend those appointments under Article 3, Sections
25, 26, or 27 of the Alaska Constitution. Based on that summary
judgment order, a final judgment was entered in favor of the
legislature on February 25, 2021. Shortly thereafter, Governor
Dunleavy filed a notice of appeal in the Alaska Supreme Court.
MS. WALLACE stated that this matter is still under litigation,
currently being briefed in the Alaska Supreme Court (ASC). She
anticipated that ASC would issue a decision in early to mid-
April. One key question or issue that arose is the impact of the
lawsuit or decision on the legislature's ability to consider
governor appointments this legislative session.
1:43:15 PM
MS. WALLACE stated there has never been a dispute that AS
39.05.080 (B)(3) indicates the person whose name is refused for
appointment by the legislature may not be appointed to the same
position or membership during the interim between regular
legislative sessions. Nor has there been a dispute that the
governor had the authority to reappoint appointees, who were
considered rejected by law via House Bill 309, at the beginning
of this legislative session. In fact, on January 19, 2021,
Governor Dunleavy reappointed most of the individuals who were
considered rejected. However, nothing about the lawsuit prevents
the legislature from continuing its normal confirmation process
in this legislative session. This means the legislature will
operate under AS 39.05.080, which governs the procedure of
appointments, she said.
1:44:35 PM
SENATOR HUGHES explained that Governor Dunleavy's appointments
made from January 19, 2021, going forward were not affected.
However, there is a "doughnut hole" situation to address for
appointments made during the period from December 15, 2020,
until January 19, 2021. She asked if the legislature could
retroactively approve governor appointees. If so, it could save
public dollars being spent on litigation, she said.
MS. WALLACE answered that she was unsure what options were
available to the legislature to retroactively confirm the
appointments made last session. Since the governor's office
filed an appeal, unless the parties resolve the issues or the
governor withdraws his appeal, Legislative Council will continue
to litigate the issue.
1:46:42 PM
SENATOR HUGHES recalled a similar action in which Legislative
Council ratified the RPL process to ensure the actions taken
were constitutional. She wondered if it would be possible to
ratify and retroactively approve the appointments. She asked
whether any board or commission took actions between December
15, 2020, and January 19, 2021, since that action would be
considered invalid.
MS. WALLACE agreed that the legislature sometimes had taken
action to ratify past events. However, she was unsure if it
could do so for confirmations. She related her understanding
that several boards met. However, the Superior Court did not
render a decision on any specific actions board members might
have taken during that period. If anyone were to challenge the
actions of the affected appointees, it would be a separate and
independent legal challenge, she said. She offered to research
this and report back to the committee.
1:49:13 PM
SENATOR MYERS summarized his understanding of the briefing. He
stated that the original statute confirming board and commission
appointments indicated the legislature shall meet in joint
session. The legislature passed House Bill 309, which gave an
option to the legislature if it did not meet. However, the
legislature did not meet in joint session due to COVID-19, it
did not pass permission to operate remotely and it did not call
itself into special session, he said. Governor Dunleavy could
also have called the legislature into a special session, but he
did not.
MS. WALLACE agreed with his assessment that the legislature did
not reconvene after it adjourned last legislative session to
take up confirmations or any other legislation.
SENATOR MYERS asked if a future legislature could decide to
simply not hold a joint session, thereby disqualifying governor
appointments to hamstring the governor.
MS. WALLACE responded that she did not want to speculate on
that. She reported that AS 39.05.080 has been in effect since
1964. This statute states that the legislature's failure to act,
confirm or decline results in an appointment being tantamount to
declination. She highlighted that this had been a longstanding
procedural statute. As far as she knew, the legislature has
never exercised that statute as a means to decline a large
number of appointees. Last year, the legislature did not meet in
joint session to confirm the appointees due to COVID-19 public
health concerns.
1:52:10 PM
SENATOR MYERS surmised that this could be an instance where a
party might be right legally but not morally. He said he is
uncomfortable with that possibility. He offered his view that
the statutes might give the legislature power it should not have
and allow it to avoid its duty.
1:53:02 PM
SENATOR SHOWER pointed out that the legislature attempted to
pass a remote operation bill, but it was thwarted. He said he
hoped the legislature would pass a bill to allow it to operate
remotely so the legislature can do its duty. He echoed earlier
comments that the governor could have called the legislature
into special session did not do so. However, he was never polled
by Senate leadership on whether he favored holding a special
session. He offered his view that the responsibility rests with
both parties.
1:54:39 PM
SENATOR HUGHES agreed. She stated that the governor could have
left the positions vacant. As the legislature works on disaster
legislation, it should put in provisions to trigger remote
operations and suspend the Uniform Rules. She further asked if
boards and commissions were prevented from meeting their
statutory obligations by the governor's actions.
MS. WALLACE responded that this was difficult for her to answer
since she is unaware of what matters were before the boards and
commissions. She acknowledged that the governor could have
advised the board not to meet or the governor could have asked
the appointees in question not to participate in those meetings.
He could then have reappointed board members who were affected.
1:56:33 PM
SENATOR HUGHES expressed concern about the time and money spent
by the legislature, executive branch and the judiciary on the
lawsuit. She asked for an estimate of costs for all three
branches of government on this litigation. She asked if
Legislative Legal Services itemizes its time in the same manner
that private sector attorneys track time spent on cases.
MS. WALLACE responded that Legislative Legal attorneys track
litigation time to a certain extent. However, she said she is
not aware of any extra costs this litigation caused for the
legislative branch since it is being handled in house within the
agency's regular budget.
1:58:10 PM
CHAIR REINBOLD asked if the legislature should add a remote
operation option in the disaster declaration bill.
MS. WALLACE responded that it would be difficult to take a
position as to whether the legislature should adopt permanent
remote voting or other remote legislative proceeding protocols.
She said this is a policy call for the legislature. With respect
to the ongoing pandemic, the legislature should consider the
possibility a sudden widespread outbreak could occur. If so, the
legislature might not be able to meet or establish a quorum.
Thus, the legislature may wish to adopt provisions for holding
remote sessions to avoid a long recess or an inability to meet.
Once COVID-19 ends, there may be future events the legislature
should consider planning for, such as earthquakes, other major
disasters, or health-related disasters. She said these are
policy decisions for the legislature to consider.
2:02:53 PM
CHAIR REINBOLD remarked she was unsure when the pandemic will
end given that different strains of the virus were cropping up.
She asked for an explanation about the emergency Legislative
Council meeting action to delegate authority to its Chair.
MS. WALLACE responded that Legislative Council recently held a
meeting and delegated authority to the Chair to make decisions
on ongoing and pending legal matters. Typically, matters come up
and filings need to be made, she said. The decision to delegate
authority was not made to initiate an appeal but rather to
delegate the authority to the Legislative Council Chair to work
with the Legislative Affairs attorney on these ongoing matters.
CHAIR REINBOLD asked if that was a normal process Legislative
Legal uses to work with Legislative Council. She was unsure why
the emergency Legislative Council meeting was called.
MS. WALLACE replied that the recent Legislative Council meeting
was called due to urgent deadlines set for the appeal of
governor's lawsuit. She said it is not unusual to delegate the
authority to work on litigation with her office. She explained
that Legislative Council previously decided to initiate
litigation on forward funding of legislation and governor
appointments. The legislature did not have the authority to
[delegate these matters] since this is a new legislature and a
new Legislative Council Chair, she said.
CHAIR REINBOLD asked how frequently this type of delegation of
authority occurs.
2:07:16 PM
MS. WALLACE responded that she could not comment on the
relationship between the Chair and Vice Chair of Legislative
Council but in her experience the Chair has consistently been
delegated the authority to make decisions on litigation.
CHAIR REINBOLD offered her view that this seemed unusual. Since
she hasn't served on Legislative Council for several years, she
would like a refresher on the powers the Chair has with respect
to litigation.
MS. WALLACE asked if her question was with respect to
Legislative Council's powers on litigation.
CHAIR REINBOLD expressed her interest in the last motion that
was made at the emergency Legislative Council meeting.
MS. WALLACE suggested that perhaps it would be better to discuss
this privately or during a Legislative Council meeting since
these discussions could result in disclosing strategy.
2:09:47 PM
SENATOR KIEHL agreed it was never good when the executive branch
and legislature ended up in court. He said the Superior Court
ruling seemed to imply that the legislature not voting on
appointees means yes. He asked for clarification on the ruling.
MS. WALLACE responded that she did not have the summary opinion
before her and did not want to mischaracterize the ruling.
However, Judge Pallenberg's decision upheld the language in
House Bill 309 and AS 39.050.080(3) that said that the failure
to vote was tantamount to declination as provided by law. The
other option is if the failure to vote was not tantamount to
declination, it could have resulted in what is sometime referred
to as tacit confirmation, she said. If the legislature doesn't
specifically and affirmatively vote to confirm someone, that the
appointments just tacitly become confirmed through inaction.
There was a pre-statehood court decision in the Munson matter
that ruled that tacit confirmation is not something that the
legislature had provided for. Therefore, it wasn't a viable
solution when the legislature had not acted, she said.
SENATOR KIEHL said he would follow up with her later.
2:13:52 PM
CHAIR REINBOLD remarked that she likes checks and balances on
the branches of government. She said she appreciated the
briefing.
2:14:50 PM
At ease
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.]
3:01:34 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 3:01 p.m.
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