Report on the Proposed Electronic Wills Act in NY

SUMMARY

The Commercial Law and Uniform State Laws Committee issued a report raising concerns about the proposed electronic wills bill. In the digital era, it has become common practice to execute and store in electronic format legally binding instruments. To the extent signatures on such electronic instruments must be notarized, New York’s Executive Law Section 135-c authorizes the use of internet technology to enable a notary to reliably authenticate the signature of a remotely located signer. However, there are no commonly accepted assurances of reliability, nor general legal authority, for remote witnessing of the signing of a will by a testator, which the EPTL requires to be done “in person.” Unlike most legal documents, a will’s authenticity is assessed only after the testator’s death. Therefore, adopting an electronic format requires careful planning to protect against fraud or alteration and ensure reliability.

ADVOCACY

Letter to Governor Hochul expressing support for bill with negotiated chapter amendments – November 14, 2025

BILL INFORMATION

A.7856-A (AM Lavine) / S.7416-A (Sen. Hoylman-Sigal) – Enacts provisions for the execution of electronic wills including attestation, revocation and filing (NYS 2025).

OUTCOME

Signed by the Governor, Chp. 637, Approval Memo 24 – December 12, 2025

REPORT

REPORT ON LEGISLATION BY THE COMMERCIAL LAW AND UNIFORM STATE LAWS COMMITTEE

A.7856-A (A.M. Lavine)
S.7416-A (Sen. Hoylman-Sigal)

AN ACT to amend the estates, powers and trusts law and the state technology law, in relation to electronic wills

THIS BILL IS OPPOSED

The Committee on Commercial Law and Uniform State Laws of the New York City Bar Association (“Committee”) opposes Bill A.7856 (A.M. Lavine) / S.7416 (Sen. Hoylman-Sigal) to amend the estates, powers and trusts law (“EPTL”) and the state technology law, in relation to electronic wills (“Bill”) insofar as the issues identified below are not clarified and resolved.

I. INTRODUCTION

In the digital era, it has become common practice to execute and store in electronic format legally binding instruments. To the extent signatures on such electronic instruments must be notarized, New York’s Executive Law Section 135-c authorizes the use of internet technology to enable a notary reliably to authenticate the signature of a remotely located signer. However, there are no commonly accepted assurances of reliability, nor general legal authority, for remote witnessing of the signing of a will by a testator, which the EPTL requires to be done “in person.” New York’s legislative efforts to modernize estate planning laws in light of these developments promise greater convenience but must be approached with due caution to prevent forgery or subsequent alteration of a will. Unlike most legal documents, a will’s authenticity is assessed only after the testator’s death. Therefore, adopting an electronic format requires careful planning to protect against fraud or alteration and ensure reliability. This includes implementing safeguards such as tamper-evident technology, robust identity verification, and secure procedures for electronic execution and remote witnessing. With respect to such issues, the Committee has reviewed the proposed Bill and identified several critical concerns that should be resolved before the Bill is enacted.

II. ISSUES IDENTIFIED BY THE COMMITTEE

1. Classification of Remotely Witnessed Paper Wills as Electronic Wills

The Bill significantly deviates from the originally proposed electronic wills bill in the 2023/ 2024 legislative session, which rendered valid wills created in electronic format and electronically signed by the testator, despite the EPTL’s requirement that a will be “in writing” and witnessed in person.

The Bill defines an “electronic will” in such a way that a paper will, manually signed by the testator in wet ink and witnessed, may qualify as an electronic will and, consequently, be subject to the Bill’s requirements, including the requirement that it be “electronically filed” within 30 days of “execution” in order to be valid. This aspect of the Bill creates the following issues:

a. Under Section 3-6.2(d) of the Bill, a will electronically executed in accordance with Section 3-6.6(a) is deemed an electronic will. However, Section 3-6.6(a) expressly permits an “electronic will” to be in paper format and to be manually signed and witnessed. Therefore, it is unclear what the term “electronically executed,” which is not defined in the bill, is supposed to mean.

b. Section 3-6.6(a)(3) of the Bill requires the “electronic will” to be signed by each witness in the presence of the testator or within 30 days from the execution by the testator, and explicitly allows this to be in the electronic (rather than physical) presence of the testator. Accordingly, if the testator, who has manually signed a will, uses internet A/V technology to observe a witness manually signing the attestation line on the will, that single fact would appear to be sufficient to render the manual signing of a paper will by both testator and witnesses to constitute the “electronic execution” of the will, thereby rendering the paper will an “electronic will.”

c. The Bill does not require a will that is in electronic format to be “tamper-evident,” which is the customary drafting convention for laws authorizing electronic records to be valid instruments. The requirement that the signing of the will cause it to become “tamper evident” is essential to protect against inadvertent or fraudulent alterations after signing. While the definition of “electronic will” contemplates that the original electronic will contain “audit trail data,” which is defined (ambiguously) as “data about the activities of data, including … the will’s creation and execution,” the Bill does not require that the audit trail render the will “tamper-evident” and does not specify how the audit trail will reveal whether a particular record is the original or merely a copy of an original. More critically, it does not require this audit trail data to be maintained in an electronic format, so, once again, it is possible that a so-called “electronic will” may be a paper will with a manually prepared “audit trail” describing the will’s creation and execution.

d. Conceivably the act of emailing a pdf of a paper will would satisfy the requirement for the “electronic filing” of the will, which requirement says nothing about filing an “original” and nothing about how the “original” will would be determined.

In short, the Committee’s key concern is that the Bill does not clearly limit its scope to wills executed in electronic format with electronic signatures. This represents a significant deviation from the originally proposed bill. In theory, authorizing remote witnessing of manually signed paper wills may be appropriate, but only if accompanied with appropriate security procedures to prevent tampering and to verify the authenticity of all signatures. The Bill includes no such security procedures, nor does it authorize the Office of Court Administration (“OCA”) to promulgate any such procedures.

2. Lack of Adequate Security Procedures

The Bill lacks adequate safeguards, commonly referred to as security procedures, to ensure the reliability of the resulting electronic will.  Electronic records laws typically establish general standards that must be satisfied for an electronic instrument to be recognized as valid. These standards require that (i) the electronic record be tamper-evident, (ii) any post-signing alterations be clearly disclosed, and (iii) the procedures used for the electronic signing of an electronic record reliably verify the identity of the signatories and the authenticity of signatures. In the case of instruments that must be notarized, such laws generally mandate that the signer be reliably identified, and that the notary be able to confirm that the record that is signed is identical to the record that is notarized. Frequently, these laws also include security procedures, which are sometimes referred to as safe harbors, that are sufficiently reliable to be deemed to satisfy the general standards. For example, the law may provide that use of technology that identifies the “original” electronic record and distinguishes it from all electronic copies satisfies the requirement for the identity of the signed record and the notarized record. These standards may also specify the steps a notary must take to confirm the identity of a previously signed paper record with the paper record before a remotely located notary, if the notary is remotely notarizing a paper (as opposed to electronic) record; however, New York law does not currently permit a notary to remotely notarize a paper record.

Unfortunately, the Bill neither stipulates general standards nor does it specify adequate security procedures to ensure the reliability of the multiplicity of types of electronic wills covered by the Bill, which (as noted above) may be in electronic format or may be hybrid paper-electronic format involving remote witnessing via audiovisual (A/V) technology.  In particular:

a. Fully electronic wills. In the case of wills that are in electronic format and electronically signed by the testator and each witness, the Bill has no requirement that the electronic record be rendered tamper-evident by the testator’s electronic signature and no requirement that the technology establish the authenticity of the electronic signatures of the testator or witnesses.

b. Paper wills with remote witnessing. In the case of paper wills with manual signatures, the witnessing of which is being conducted using internet technology by remotely located witnesses, there is no requirement for (i) the identification of each witness, (ii) the recordation of the act of witnessing, (iii) the identification of the witnesses, or (iv) the identity of the paper will previously signed by the testator with the paper will subsequently signed by the witness.

c. Court filing of electronic wills. Allowing an electronic will, possibly a PDF version of a manually signed paper will that was remotely witnessed, to be filed with the court provides no assurance that the will was actually signed by the purported testator, was properly witnessed or was not altered after it was signed by the testator but before it was filed.

3. Unclear Consequences of Omitting “Cautions”

Section 3-6.5 of the Bill suggests the disclosure language for a “caution” to be included in an electronic will[1]. However, it does not state whether a will that lacks the warnings set out in section 3-6.5 is valid or invalid or what the consequences are of such a failure or who suffers those consequences.

4. Definition of “Original” Electronic Will

Section 3-6.2(d) of the Bill refers to an “original” electronic will but fails to explain how an original in electronic format would be determined. It is also unclear whether a will filed with the OCA constitutes the sole “original” electronic will. As such, it is unclear whether the deletion of a PDF version from the court system would revoke the will under section 3-6.7(b)(2) in case a testator files a PDF version of an electronic will but retains the paper version[2]. Moreover, there is no provision in the Bill dealing with the effect of an electronic codicil on a paper will or the effect of a paper codicil on an electronic will.[3]

5. Absence of Notarial Certification

The Bill makes no provision for the certification by an electronic notary of a will in electronic format although it makes provision for “self-proving by acknowledgement” in Section 3.6.8.  It also makes no provision for the conversion of a signed paper will into an electronic will in the event the witnessing is done using remote internet technology.

6. Recognition of Foreign Wills

Section 3-6.4 of the Bill provides that a will executed by a testator located or domiciled outside New York is an electronic will if it complies with the law of that other jurisdiction. However, it does not provide any rules to determine whether or when such a will is formally valid and admissible for probate in New York under the EPTL.[4]

7. Contradiction and Ambiguity Concerning the Testator’s Presence Requirement

Section 3-6.6 (a) (3)[5] of the Bill requiring witnesses to sign in the physical or remote presence of the testator or within 30 days of the signature by the testator is contrary to EPTL section 3-2.1, which does not require the testator’s presence for witness’ signatures on a paper will. It is unclear why this additional requirement is imposed on an electronic will. It is also unclear how this 30 day period for witnessing would work with the 30 day period for recording the will.

Also, section 3-6.6 (a)(B)(i)[6] of the Bill provides that the execution of an electronic will is subject to the rule that “[T]he presence of any matter following the testator’s signature appearing on the will at the time of its execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution…” It is unclear what it would mean, or how it would be determined whether, any matter “appeared’ before or after the testator’s signature at the time of execution of a will in electronic format.  Presumably, for an electronic will, the rule would be that any matter revealed to be a post-signing alternation of the record must be disregarded.[7]

8. No Authority or Rules for Remote Witnessing

Section 3-6.6(a) of the Bill fails to specify that remote observation of the testator’s signing or acknowledgment of signing via A/V technology satisfies the legal requirement for “presence.” New York law does not generally authorize remote witnessing, other than remote witnessing by a registered electronic notary public, i.e., an acknowledgment. Moreover, there are no generally established rules, practices or technology for remote witnessing by lay witnesses. The Bill will implicitly authorize such witnessing without any standards or safeguards. Unrecorded remote witnessing by lay witnesses with no training, experience or guidance will create substantial fraud and forgery risk.

9. Revocation of Electronic Wills

Section 3-6.7(a)(2) of the Bill provides for revocation of an electronic will by removal from the custody of the New York state unified court system. This provision does not provide a timeframe, and it is unclear when revocation will become effective. Moreover, the Bill falls short of adequately addressing whether revocation by physical means is feasible or whether the execution of a paper or electronic will or codicil (in paper or electronic form) subsequent to the filing of the original electronic will would terminate or supersede the original electronic will.

10. Effect of Self-Proving Electronic Wills

The provisions of section 3-6.8 of the Bill provide for making electronic wills self-proving through simultaneous execution, acknowledgment, and witnessing. Since attestation by the witness can occur up to 30 days after the will is signed by the testator, it is unclear how this is intended to work.  However, this procedure appears to be permissive. It is neither mandatory for the validity of the electronic will nor is it the exclusive means of rendering the will self-proving. This procedure also does not require the involvement of a New York registered electronic notary. Thus, this process does not assure the creation of electronic wills by the use of tamper-evident technology, an A/V recordation process, or identification protocols employed by registered New York electronic notaries.

11. Time of Execution of an Electronic Will

Section 3-6.9[8] of the Bill provides for the filing of an electronic will either by the testator or another person authorized by the testator within 30 days of its “execution”. However, the Bill does not define when an electronic will is “executed” for purposes of triggering the 30-day filing deadline. Execution cannot refer to the testator’s signature alone, because, if it is manual, the will would not be an electronic will at that time; it would only become an electronic will when it was witnessed using internet technology.  Given that remote observation by the testator of a witness’ signing of the will is required for its validity and may be the only electronic act needed to render the paper will an electronic will, then a particular will might not be “electronically executed” until that act of remote witnessing occurs, and that electronic act could occur when the testator acknowledged having previously signed the electronic will.  In that event, a will might have been signed by the testator weeks or months before the testator’s acknowledgment to a remotely located on-line witness triggered the 30-day attestation period.  The witness would then trigger the filing deadline under section 3-6.9 of the Bill when she signed the attestation line on the will.  This delay introduces a prolonged risk of tampering during that entire protracted period, not merely for 30 days, as contemplated by the Bill.

12. Testator’s Electronic Signature

The statutory language dictating the placement of the testator’s signature[9] is of limited relevance in the context of an electronic will. The signature may consist of an electronic symbol or process that is either affixed to or logically associated with the electronic will file. Accordingly, the law should not assume that the signature appears at the “end” of the document, nor should it presume that any text appearing “after” the signature is necessarily invalid. While it is reasonable to assert that any text added subsequent to the signing of the will, i.e., later in time, should be invalid, it is unclear how such a scenario would occur because the electronic will is intended to exist within a secure file format, which should prevent any modification after it has been executed.

13. Office of the Court Administration Rulemaking

The Bill does not clearly vest OCA with authority to make rules that would cure any of the deficiencies outlined herein. Moreover, it is not clear what rules the OCA is supposed to make other than those concerning how an electronic will would be electronically filed with and maintained by the courts[10]. It further fails to clarify how OCA’s authority would overlap or be coordinated with the rulemaking authority of the Office of Information Technology Services (relating to electronic records and signatures) or the Secretary of State (relating to self-proving affidavits).

III. CONCLUSION

While the Bill represents an effort to modernize estate planning and adapt to emerging technologies, it falls short of establishing the necessary legal safeguards. Further, it exposes testators, beneficiaries, and the courts to significant legal ambiguity and uncertainty. Therefore, the Committee urges the Legislature to consider the issues stated herein and not pass the Bill as is. Alternatively, the Committee recommends considering the Uniform Law Commission’s Uniform Electronic Wills Act (“UEWA”) and its commentary[11] as a possible model for legislation in New York despite some of the limitations of UEWA that would need to be tailored for New York.[12]

Commercial Law and Uniform State Laws Committee
Gizem Alper, Chair

June 2025