On March 26, 2020, with the Covid-19 pandemic spreading throughout Illinois, Governor Pritzker signed Executive Order 2020-14 (the “Executive Order”), which, among other things, authorized wills and other testamentary estate planning instruments to be witnessed and notarized remotely using the appropriate videoconferencing technology. This Executive Order was meant to be a stopgap measure to solve the unique challenges executing a will or other testamentary document during the pandemic. As the pandemic continued, however, the legislature considered a more permanent fix.
Exactly 16 months later, on July 26, 2021, Governor Pritzker signed into law the Electronic Wills and Remote Witnesses Act (the “Act”), which became effective immediately. The Act not only provided legislative approval to a slightly modified version of the remote witnessing and notarization process for wills outlined in the Executive Order until 30 days after the expiration of the Governor’s emergency declaration for the pandemic (Section 15-20 of the Act), but also made significant changes to the legal requirements for executing and storing testamentary documents, including authorizing the execution, storage, and probate of electronic wills in Illinois for the first time. While the Act does not modify or address remote notarizations, the legislature recently enacted legislation making changes to the Illinois Notary Public Act. Most of these changes, however (including many of those related to remote notarizations), will not take effect until the earlier of January 1, 2022, and the promulgation of administrative rules by the Secretary of State.
Section 15-10 of the Act provides the general requirements for the remote execution of a will. All remotely executed wills must designate Illinois as the place of execution, be signed by the testator or someone in the testator’s presence (whether through videoconference or physical presence) and at the testator’s direction, and be attested to by two or more credible witnesses who are present via videoconference and located in the United States. (Note that the Probate Act’s restrictions on who may serve as a witness continue to apply). The testator and the witnesses should be able to establish a videoconference that is sufficient to allow each of them to know the testator and witnesses are “signing a document in real time.”
The testator should have a complete paper copy of the will being signed. The witnesses should each have separate signature pages which are distributed to them prior to the signing. Section 20-20(b) of the Act provides that the attestation clause signed by remote witnesses should include the following statements: that (1) the attesting witness was present and saw the testator or some person in the testator's presence and by the testator's direction sign the will in the presence of the witness or the testator acknowledged it to the witness as the testator's act; (2) the will was attested to by the witness in the presence of the testator; (3) the witness believed the testator to be of sound mind and memory at the time of signing or acknowledging the will; and (4) the method used by the witness to determine the testator's identity, and if a form of identification was used, the nature of the identification provided.
Once the will has been prepared, copies of compliant signature pages distributed, and the necessary parties are in a videoconference of sufficient quality, Section 15-10(c) of the Act describes the process for a remote will signing. The witnesses should each first determine the testator’s identity by (1) personal knowledge; (2) a government-issued identification; (3) another form of identification that includes a photograph of the testator; or (4) identity proofing (e.g., facial recognition, voiceprint analysis, or fingerprint analysis). If a form of identification is used, the testator should hold the identification up to his or her camera so it may be inspected by the witnesses. Next, the testator should acknowledge that the document the testator is signing is the testator’s will, and ask the witnesses to act as witnesses to the testator’s signing of it. The testator should then should sign the will or direct another person in the testator's presence (either physically or via videoconference) to sign it and acknowledge the signature as the testator's act. Then, the witnesses should attest to the will by signing the attestation.
After the testator and witnesses have each signed separate signature pages, Section 15-10(e) of the Act provides that the testator or a person appointed by the testator has 10 business days to attach the witness's signed signature page(s), attestation clause(s), and affidavit forming a part of the will (or a copies of any one or more of those) to the document the testator signed. If a person appointed by the testator completes this process, Section 20-20 of the Act describes an affidavit or certified written statement which should be executed and attached to the will at the time those pages are attached (in the case of a certified statement) or anytime thereafter (in the case of an affidavit) in order for the will to be admissible to probate. That statement or affidavit should provide that the signed signature pages and attestation clauses (and affidavits, if any), forming a part of the will or copies of the same were attached within 10 business days of each witness's attestation and that the person attached the signed signature pages, attestation clauses, or affidavits forming a part of the will or copies of the same to the testator's complete and correct will.
The Act also makes another significant change—electronic wills are valid under Illinois law. An “electronic will” is a will that is created and maintained as a tamper-evident electronic record (Section 1-20 of the Act). For an electronic will to be “tamper-evident,” the record in which it is stored must be capable of displaying any change made to the will. A service such as Docusign therefore should be acceptable for the creation and storage of this type of will. Because a great deal of questions remain unanswered regarding the implementation of electronic wills (for example, the methods by which Illinois courts can process, file, and retrieve them), it is prudent to continue using a paper will for now.
Practitioners should, of course, study the requirements of the Act in detail before conducting a signing remotely to ensure all the Act’s requirements are complied with, and monitor the changes in the law related to remote notarizations and the Governor’s emergency proclamation. As the pandemic continues, however, the changes brought about by the Act provide a measure of clarity for those seeking to execute wills remotely.
Robert Morse is a member of Thompson Coburn’s Estate Planning practice group.
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