The following article was included in the July 31st edition of the Macomb County Probate Bar Association E-Petition.
House Bill 5795 (2020) was introduced May 20, 2020 by Reps. Graham Filler and Brian Elder, and referred to the Committee on Judiciary1. The Committee on Judiciary issued its Summary on June 17, 20202. Per the Summary, HB 5795 “would amend the Estates and Protected Individuals Code (EPIC) to allow for an electronic will and for a certified paper copy of that electronic will to be made.” Thus, if this amendment is passed, a Last Will and Testament could be considered valid if it is either in writing, or if there is “a record that is readable as text” at the time the testator or person directed by the testator and the witnesses sign the will. …[T]he witnesses could sign the will either in person or in electronic presence.” The term “sign” would mean “with present intent to authenticate or adopt a record to do either of the following: (i) Execute or adopt a tangible symbol, or (ii) Affix to or logically associate with the record an electronic symbol or process.”
The bill also proposes to add a new section to EPIC which would to allow creation of a “certified paper copy” of an electronic will, by an individual’s affirmation under penalty of perjury that the paper copy of the electronic will is a “complete, true, and accurate copy.”
A representative of Legal Zoom testified in support of the bill. Notably, the Elder Law and Disability Rights Section and the Probate and Estate Planning Section of the State Bar of Michigan both oppose this bill as drafted. Both Sections cite concern that the “formalities and functions” needed for the validity of a will, including those “[evidentiary, protective (e.g. protected from undue influence, fraud, delusion, coercion, forgery or perjury) etc.]” are not adequately addressed in the bill as drafted. Likewise, both Sections have stated willingness to work with the bill’s sponsor, as well as with other Sections and colleagues, to address formalities and functions missing in the current bill.
This bill has moved on to the next step in the legislative process, and on June 24, 2020 was passed by the House as introduced, with only the following adopted House amendments to the initially-introduced text3.
The two witnesses may sign “either in person or in electronic presence,” and “electronic presence” is defined as "the relationship of 2 or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.”
The Elder Law and Disability Rights Section, Probate and Estate Planning Section, and the State Bar of Michigan continue to oppose this bill as drafted, and continue to cite concerns including those regarding protections from undue influence, fraud, delusion, coercion, forgery or perjury.
