A will puts legal effect to the wishes of a deceased person. The person who signs the will is known as the testator, and the law requires several formalities intended to ensure that the will truly represents the wishes of the testator. If the formality requirements are not satisfied, a probate court will likely find that the will is not valid. These requirements are often the subject of heated probate litigation.
The states have different laws and some have very different sets of formality requirements for wills. Most require the will to be on paper and signed by the testator in the presence of two impartial witnesses. This requirement is intended to show that the testator was not coerced or tricked into signing something that did not accurately reflect his or her wishes.
Since 2001, Nevada has allowed for electronic wills with electronic signatures. This development is controversial and it may be years before Nevada courts have worked out some of the issues is raises.
Under Nevada law, an electronic will may be considered valid so long as the testator provided an electronic signature and an “authentication characteristic,” such as a fingerprint, retinal scan or some other representation of a unique characteristic of the person.
Several states have considered authorizing electronic wills, but as of this writing, Nevada is still the only state to do so. A bill to authorize electronic wills was approved by the legislature in Florida, but was vetoed by that state’s governor earlier this year.
Critics say that electronic wills can be vulnerable to hackers, or simply to software problems that could render them unreadable when the time comes that they will be necessary. Nevada’s law attempts to eliminate these problems by requiring that an “authoritative copy” of the will is placed in the possession of a designated custodian.
To learn more about formality requirements and how they affect probate litigation, speak to an experienced probate litigation attorney.