Bill Text: NY S08501 | 2023-2024 | General Assembly | Introduced
Bill Title: Enacts provisions for the execution of electronic wills including attestation, notarization, and revocation.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-06-07 - COMMITTED TO RULES [S08501 Detail]
Download: New_York-2023-S08501-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8501 IN SENATE February 6, 2024 ___________ Introduced by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the estates, powers and trusts law and the state tech- nology law, in relation to electronic wills The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 3 of the estates, powers and trusts law is amended 2 by adding a new part 6 to read as follows: 3 PART 6. ELECTRONIC WILLS 4 Section 3-6.1 Short title 5 3-6.2 Definitions 6 3-6.3 Law applicable to electronic will; principles of equity 7 3-6.4 Choice of law regarding execution 8 3-6.5 Execution of electronic will 9 3-6.6 Harmless error 10 3-6.7 Revocation 11 3-6.8 Electronic will attested and made self-proving at time of 12 execution 13 3-6.9 Certification of paper copy 14 § 3-6.1 Short title 15 This part may be cited as the New York electronic wills act. 16 § 3-6.2 Definitions 17 For purposes of this part the following terms shall have the following 18 meanings: 19 (a) "Electronic" means relating to technology having electrical, 20 digital, magnetic, wireless, optical, electromagnetic, or similar capa- 21 bilities. 22 (b) "Electronic presence" means the relationship of two or more indi- 23 viduals in different locations communicating in real time by electronic 24 means to the same extent as if the individuals were physically present 25 in the same location. 26 (c) "Electronic will" means a will executed electronically in compli- 27 ance with paragraph (a) of section 3-6.5. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11398-04-4S. 8501 2 1 (d) "Record" means information that is inscribed on a tangible medium 2 or that is stored in an electronic or other medium and is retrievable in 3 perceivable form. 4 (e) "Sign" means, with present intent to authenticate or adopt a 5 record: (1) to execute or adopt a tangible symbol; or (2) to affix to 6 or logically associate with the record an electronic symbol or process. 7 (f) "State" means a state of the United States, the District of Colum- 8 bia, Puerto Rico, the United States Virgin Islands, or any territory or 9 insular possession subject to the jurisdiction of the United States. 10 The term shall also include a federally recognized Indian tribe. 11 (g) "Will" includes a codicil and any testamentary instrument that 12 merely appoints an executor, revokes or revises another will, nominates 13 a guardian, or expressly excludes or limits the right of an individual 14 or class to succeed to property of the decedent passing by intestate 15 succession. 16 § 3-6.3 Law applicable to electronic will; principles of equity 17 An electronic will is a will for all purposes of the law of this 18 state. The law of this state applicable to wills and principles of equi- 19 ty apply to an electronic will, except as modified by this act. 20 § 3-6.4 Choice of law regarding execution 21 A will executed electronically but not in compliance with paragraph 22 (a) of section 3-6.5 is an electronic will under this act if executed in 23 compliance with the law of the jurisdiction where the testator is: 24 (a) physically located when the will is signed; or 25 (b) domiciled or resides when the will is signed or when the testator 26 dies. 27 § 3-6.5 Execution of electronic will 28 (a) Subject to paragraph (d) of section 3-6.8 and except as provided 29 in section 3-6.6, an electronic will must be: 30 (1) a record that is readable as text at the time of signing under 31 subparagraph two; 32 (2) signed by: 33 (A) the testator; or 34 (B) another individual in the testator's name, in the testator's phys- 35 ical presence and by the testator's direction; and 36 (3) either: 37 (A) signed in the physical or electronic presence of the testator by 38 at least two individuals, each of whom is a resident of a state and 39 within a reasonable time after witnessing: 40 (i) the signing of the will under subparagraph two; or 41 (ii) the testator's acknowledgment of the signing of the will under 42 subparagraph two or acknowledgement of the will; or 43 (B) acknowledged by the testator before and in the physical or elec- 44 tronic presence of a notary public or other individual authorized by law 45 to notarize records electronically. 46 (b) Intent of a testator that the record under subparagraph one of 47 paragraph (a) be the testator's electronic will may be established by 48 extrinsic evidence. 49 (c) Notwithstanding paragraph (d) of subdivision one of section one 50 hundred thirty-five-c of the executive law, for purposes of this section 51 electronic wills may be notarized by notary publics that are not phys- 52 ically present in the state of New York. 53 § 3-6.6 Harmless error 54 Although a document or writing added upon a document was not executed 55 in compliance with section 3-2.1, the document or writing shall be 56 treated as if it had been executed in compliance with that section ifS. 8501 3 1 the proponent of the document or writing establishes by clear and 2 convincing evidence that the decedent intended the document or writing 3 to constitute any of the following: 4 (a) The decedent's will. 5 (b) A partial or complete revocation of the decedent's will. 6 (c) An addition to or an alteration of the decedent's will. 7 (d) A partial or complete revival of the decedent's formerly revoked 8 will or of a formerly revoked portion of the decedent's will. 9 § 3-6.7 Revocation 10 (a) An electronic will may revoke all or part of a previous will. 11 (b) All or part of an electronic will is revoked by: 12 (1) a subsequent will that revokes all or part of the electronic will 13 expressly or by inconsistency; or 14 (2) a physical act, if it is established by a preponderance of the 15 evidence that the testator, with the intent of revoking all or part of 16 the will, performed the act or directed another individual who performed 17 the act in the testator's physical presence. 18 § 3-6.8 Electronic will attested and made self-proving at time of 19 execution 20 (a) An electronic will may be simultaneously executed, attested, and 21 made self-proving by acknowledgment of the testator and affidavits of 22 the witnesses. 23 (b) The acknowledgment and affidavits under paragraph (a) must be: 24 (1) made before and in the physical or electronic presence of an offi- 25 cer authorized to administer oaths under law of the state in which the 26 officer is located; and 27 (2) evidenced by the officer's certificate under official seal affixed 28 to or logically associated with the electronic will. 29 (c) The acknowledgment and affidavits under paragraph (a) must be in 30 substantially the following form: I, ___________________________, the 31 testator, being sworn, declare to the undersigned officer that I sign 32 this instrument as my electronic will, I willingly sign it or willingly 33 direct another individual to sign it for me, I execute it as my volun- 34 tary act for the purposes expressed in this instrument, and I am 18 35 years of age or older, of sound mind, and under no constraint or undue 36 influence. 37 ___________________________ 38 Testator 39 We, ___________________________ and ___________________________, 40 witnesses, being sworn, declare to the undersigned officer that the 41 testator signed this instrument as the testator's electronic will, that 42 the testator willingly signed it or willingly directed another individ- 43 ual to sign for the testator, and that each of us, in the physical or 44 electronic presence of the testator, signs this instrument as witness to 45 the testator's signing, and to the best of our knowledge the testator is 46 18 years of age or older, of sound mind, and under no constraint or 47 undue influence. 48 ___________________________ 49 Witness 50 ___________________________ 51 WitnessS. 8501 4 1 Certificate of officer: 2 State of __________ 3 County of __________ 4 Subscribed, sworn to, and acknowledged before me by 5 ___________________________, the testator, and subscribed and sworn to 6 before me by ___________________________ and 7 ___________________________, witnesses, this ______ day of ______, ___. 8 (Seal) 9 ________________________________________________ 10 (Signed) 11 _________________________________________ 12 (Capacity of officer) 13 (d) A signature physically or electronically affixed to an affidavit 14 that is affixed to or logically associated with an electronic will under 15 this act is deemed a signature of the electronic will under paragraph 16 (a) of section 3-6.5. 17 § 3-6.9 Certification of paper copy 18 An individual may create a certified paper copy of an electronic will 19 by affirming under penalty of perjury that a paper copy of the electron- 20 ic will is a complete, true, and accurate copy of the electronic will. 21 If the electronic will is made self-proving, the certified paper copy of 22 the will must include the self-proving affidavits. 23 § 2. The opening paragraph of paragraph (a) of section 3-2.1 of the 24 estates, powers and trusts law is amended to read as follows: 25 Except for nuncupative and holographic wills authorized by 3-2.2 and 26 electronic wills authorized by part six of this article, every will must 27 be in writing, and executed and attested in the following manner: 28 § 3. Subdivision 1 of section 307 of the state technology law, as 29 amended by chapter 543 of the laws of 2023, is amended to read as 30 follows: 31 1. To any document providing for the disposition of an individual's 32 person or property upon death or incompetence, or appointing a fiduciary 33 of an individual's person or property, including, without limitation, 34 wills, unless such will is executed pursuant to part six of arti- 35 cle three of the estates, powers and trusts law, trusts, decisions 36 consenting to orders not to resuscitate, powers of attorney and health 37 care proxies, with the exception of: (a) contractual beneficiary desig- 38 nations; (b) the registration of making, amending, or revoking an 39 anatomical gift under section forty-three hundred ten of the public 40 health law; (c) documents and forms authorizing or accepting funeral, 41 cemetery and cremation services; and (d) the execution of a valid power 42 of attorney for the purpose of transferring a salvage certificate of 43 title and the execution of an odometer and damage disclosure statement 44 in connection with such title whenever a loss in connection with a 45 private automobile is determined by an insurer to be a total loss or 46 constructive total loss under section three thousand four hundred twelve 47 of the insurance law. 48 § 4. This act shall take effect immediately.
