July 9, 2021
Remote Wills: What to Consider Before Signing on the Dotted Line
by Ryan Welker, Esq., Law Office of Ryan G. Welker
There has been a push to make things more “remote.” However, the validity of Wills in Ohio is statutory. Even if signing a Will remotely was a viable option, there are concerns about storage, who has access to it, and how easily it can be manipulated, among other concerns. The good news is that Ohio law has a process to challenge a Will that may be defective for various reasons if electronically signed Wills ever become permissible.
First, Ohio Revised Code 2107.03 indicates that a Will has to be signed by the testator (person making the Will) and signed by two “competent” witnesses in the “conscious presence” of the testator when signed. The statute indicates that “conscious presence” excludes the sense of sight or sound sensed through “telephonic, electronic, or other distant communication.”
Second, ORC 2107.24 describes a mechanism to permit the admission of a Will not in compliance with testamentary formalities. This process can be burdensome, as before the non-compliant Will is even considered a “Will”, the probate court must determine by “clear and convincing evidence” that the descendent signed the Will, intending it to be a Will, and that it was signed before two “competent” witnesses who were in “conscious presence” to the signing. The “conscious presence” factor reappears!
“Conscious presence” may be a definition that changes over time. However, in Ohio, “telephonic, electronic, or other distant communication” does not appear to be a permissible method of witnessing the signing of a Will.
A few words about competent witnesses: first, a person of at least eighteen years of age may witness a will. Second, if a witness is a beneficiary, there could be problems on the validity of that gift. The good news? The ideal witness may be closer than you think. “Conscious presence” seems to exclude electronic methods, but it does not say that standing 20 feet apart or talking through glass are problematic.
My recommendation is not to cut corners. A small issue in a Will could lead to a drawn-out process. Testamentary formalities may be seen as an inconvenience, but they are intended to preserve your last wishes. The solution to the issue may be next door.
A note: this article does not relate to the limited applicability of Oral Wills. Nor does this article relate to other estate planning documents (i.e. powers of attorney). Issues relating to Wills are not limited to witnesses and conscious presence considerations.