Bill Text: NJ S2923 | 2022-2023 | Regular Session | Introduced
Bill Title: The "Uniform Electronic Wills Act"; authorizes electronic wills.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-06-27 - Introduced in the Senate, Referred to Senate Judiciary Committee [S2923 Detail]
Download: New_Jersey-2022-S2923-Introduced.html
Sponsored by:
Senator JOSEPH PENNACCHIO
District 26 (Essex, Morris and Passaic)
SYNOPSIS
The "Uniform Electronic Wills Act"; authorizes electronic wills.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning electronic wills and supplementing Title 3B of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Uniform Electronic Wills Act."
2. Definitions.
As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
"Electronic will" means a will executed electronically in accordance with subsection a. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Record" means information inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form.
"Sign" means, with present intent to authenticate or adopt a record:
(1) to execute or adopt a tangible symbol; or
(2) to affix to or logically associate with the record an electronic symbol or process.
"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.
"Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
3. Law applicable to electronic will; principles of equity.
An electronic will is a will for all purposes of the law of this State. The law of this State applicable to wills and principles of equity apply to an electronic will, except as modified by P.L. , c. (C. ) (pending before the Legislature as this bill).
4. Choice of law regarding execution.
A will executed electronically but not in compliance with subsection a. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) is an electronic will under P.L. , c. (C. ) (pending before the Legislature as this bill) if executed in compliance with the law of the jurisdiction where the testator is:
a. physically located when the will is signed; or
b. domiciled or resides when the will is signed or when the testator dies.
5. Execution of electronic will.
a. Subject to subsection d. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), an electronic will shall be:
(1) A record that is readable as text at the time of signing as provided under subsection b. of this section;
(2) Signed by:
(a) The testator; or
(b) Another individual in the testator's name, in the testator's conscious presence, and by the testator's direction; and
(3) Either:
(a) Signed in the physical or electronic presence of the testator by at least two individuals, each of whom signed within a reasonable time after witnessing:
(i) The signing of the will as provided under paragraph (2) of subsection a. of this section; or
(ii) The testator's acknowledgment of the signature as provided under paragraph (2) of subsection a. of this section or acknowledgment of the will; or
(b) Acknowledged by the testator before and in the physical or electronic presence of a notary public or other individual authorized by law to take acknowledgments.
b. Intent of a testator that the record under paragraph (1) of subsection a. of this section be the testator's electronic will may be established by extrinsic evidence.
6. Revocation.
a. An electronic will may revoke all or part of a previous will.
b. All or part of an electronic will is revoked by:
(1) A subsequent will that revokes all or part of the electronic will expressly or by inconsistency; or
(2) A physical act, if it is established by a preponderance of the evidence that the testator, with the intent of revoking all or part of the will, performed the act or directed another individual who performed the act in the testator's physical presence.
7. Electronic will attested and made self-proving at time of execution.
a. An electronic will may be simultaneously executed, attested, and made self-proving by acknowledgment of the testator and affidavits of the witnesses and by fulfilling the requirements of section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) .
b. The acknowledgment and affidavits under subsection a. of this section shall be:
(1) Made in the physical presence of an officer authorized to administer oaths pursuant to the law of the state in which the testator signs pursuant to paragraph (2) of subsection a. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) or, if fewer than two attesting witnesses are physically present in the same location as the testator at the time of signing, in the physical or electronic presence of a notary public or other individual authorized by law to take acknowledgements; and
(2) Evidenced by the officer's certificate under official seal affixed to or logically associated with the electronic will.
c. The acknowledgment and affidavits under subsection a. of this section shall be in substantially the following form:
STATE OF ____________________
COUNTY OF ____________________
I, ______________________, the testator, sign my name to this instrument this __________ day of _______, _____, and being first sworn, declare to the undersigned authority that I sign and execute this instrument as my electronic will and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Testator
We, __________________, _________________, the witnesses, sign our names to this instrument, and being first sworn, declare to the undersigned authority that the testator signs and executes this instrument as the testator's electronic will and that the testator signs it willingly or willingly directs another to sign for the testator, and that each of us, in the physical or electronic presence of the testator, signs this electronic will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Witness
______________________________
Witness
Subscribed, sworn to, and acknowledged before me by __________, the testator, and subscribed and sworn to before me by ___________ and __________, witnesses, this ________ day of ________________.
(SEAL) (Signed)______________________________ ______________________________ (Official capacity of officer)
d. A signature physically or electronically affixed to an affidavit that is affixed to or logically associated with an electronic will pursuant to this section is deemed a signature of the electronic will pursuant to subsection a. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
8. Certification of paper copy.
An individual may create a certified paper copy of an electronic will by affirming under penalty of law that a paper copy of the electronic will is a complete, true, and accurate copy of the electronic will. If the electronic will is made self-proving, the certified paper copy of the will shall include the self-proving affidavits.
9. Self-proving will; additional requirements.
In addition to the requirements of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), a self-proving electronic will also shall:
a. contain the electronic signature and electronic seal of a notary public placed on the will in accordance with applicable law;
b. designate a custodian to maintain custody of the electronic will; and
c. be under the exclusive control of a custodian at all times prior to being offered for probate or being reduced to a certified paper copy pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
d. As used in this section, "a custodian" is any person designated by the testator to maintain custody of the electronic will.
10. This act shall take effect immediately and shall be applicable to the will of a decedent who dies on or after the effective date.
STATEMENT
This bill authorizes electronic wills.
Section 1. This section provides that the bill shall be known and may be cited as the "Uniform Electronic Wills Act."
Section 2. This section includes definitions applicable to the bill. An "electronic will" is a will executed electronically in accordance with the provisions of the bill. "Electronic" is defined as relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. "Sign" means, with present intent to authenticate or adopt a record, (1) to execute or adopt a tangible symbol; or (2) to affix to or logically associate with the record an electronic symbol or process. "Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
Section 3. The section provides that an electronic will is a will for all purposes of the law of this State, and that the law of this State applicable to wills and principles of equity apply to an electronic will, except as modified by the bill.
Section 4. A will executed electronically but not in compliance with the provisions of subsection a. of section 5 of the bill (summarized below) is deemed an electronic will if executed in compliance with the law of the jurisdiction where the testator is physically located when the will is signed, or where the testator is domiciled or resides when the will is signed or when the testator dies.
Subsection a. of section 5. Subject to the signature requirements in section 7 of the bill, an electronic will is required to be a record that is readable as text at the time of signing. The electronic will is to be signed by the testator, or signed by another individual in the testator's name, in the physical or electronic presence of the testator and by the testator's direction. In addition, the electronic will is to either be:
(1) signed by at least two individuals, each of whom signed within a reasonable time after witnessing the signing of the will, or witnessing the testator's acknowledgment of the signature or acknowledgment of the will; or
(2) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
The bill does not allow remote witnesses to the execution of an electronic will; the witnesses are required to be in the physical presence of the testator.
Subsection b. of section 5. The intent of a testator that a record be the testator's electronic will may be established by extrinsic evidence.
Section 6. An electronic will may revoke all or part of a previous will. All or part of an electronic will is revoked by: (1) a subsequent will that revokes all or part of the electronic will expressly or by inconsistency; or (2) a physical act, if it is established by a preponderance of the evidence that the testator, with the intent of revoking all or part of the will, performed the act or directed another individual who performed the act in the testator's physical presence.
Section 7: This section provides that an electronic will may be simultaneously executed, attested, and made self-proving by acknowledgment of the testator and affidavits of the witnesses. The acknowledgment and affidavits are to be: (1) made before an officer authorized to administer oaths under law of the state in which execution occurs; and (2) evidenced by the officer's certificate under official seal affixed to or logically associated with the electronic will.
Section 7 also sets out forms for the acknowledgment and affidavits.
In addition, section 7 provides that a signature physically or electronically affixed to an affidavit that is affixed to or logically associated with an electronic will is deemed a signature of the electronic will.
Section 8. This section provides that an individual may create a certified paper copy of an electronic will by affirming under penalty of law that a paper copy is a complete, true, and accurate copy. If the electronic will is made self-proving, the certified paper copy of the will is to include the self-proving affidavits.
Section 9. This section provides that a self-proving electronic will also shall contain the electronic signature and electronic seal of a notary public placed on the will in accordance with applicable law;
designate a custodian to maintain custody of the electronic will; and
be under the exclusive control of a custodian at all times prior to being offered for probate or being reduced to a certified paper copy pursuant to the bill. The term "custodian" is defined as any person designated by the testator to maintain custody of the electronic will.
Section 10. The bill would take effect immediately and be applicable to the will of a decedent who dies on or after the effective date.
Background. The Uniform Electronic Wills Act was issued by the Uniform Law Commission in 2019. The commission also is known as the National Conference of Commissioners on Uniform State Laws.
