EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
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SENATE BILL 36
N2 EMERGENCY BILL 2lr0768
(PRE–FILED) CF 2lr1439
By: Senator West
Requested: October 15, 2021
Introduced and read first time: January 12, 2022
Assigned to: Judicial Proceedings
A BILL ENTITLED
AN ACT concerning 1
Wills and Trust Instruments – Electronic Execution 2
FOR the purpose of authorizing a person to execute an electronic will or remotely witnessed 3
will without a notary public if the supervising attorney creates a certified will that 4
contains a certain form attached or annexed to the will; prohibiting a supervising 5
attorney from being a witness to an electronic will or remotely witnessed will if the 6
will is executed without a notary public; authorizing a notary public located in the 7
State to perform a notarial act using communication technology for a remotely 8
located individual for a trust instrument; and generally relating to electronically 9
executed wills and trust instruments. 10
BY repealing and reenacting, with amendments, 11
Article – Estates and Trusts 12
Section 4–102 13
Annotated Code of Maryland 14
(2017 Replacement Volume and 2021 Supplement) 15
BY repealing and reenacting, with amendments, 16
Article – State Government 17
Section 18–214(a) 18
Annotated Code of Maryland 19
(2021 Replacement Volume) 20
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 21
That the Laws of Maryland read as follows: 22
Article – Estates and Trusts 23
4–102. 24
2 SENATE BILL 36
(a) Any person may make a will if the person is 18 years of age or older, and 1
legally competent to make a will. 2
(b) Except as provided in §§ 4–103 and 4–104 of this subtitle and subsection (f) of 3
this section, every will shall be: 4
(1) In writing; 5
(2) Signed by the testator, or by some other person for the testator, in the 6
testator’s physical presence and by the testator’s express direction; and 7
(3) Attested and signed by two or more credible witnesses in: 8
(i) The physical presence of the testator; or 9
(ii) The electronic presence of the testator, provided that an 10
electronic will or remotely witnessed will satisfies the requirements under subsection (c) or 11
(d) of this section. 12
(c) An electronic will or remotely witnessed will executed under this subsection 13
shall satisfy the following requirements: 14
(1) At the time the testator and witnesses sign the will, the testator and all 15
witnesses shall be in the physical presence or electronic presence of one another and a 16
supervising attorney, who may be one of the witnesses UNLESS THE WILL IS SIGNED, 17
ACKNOWLEDGED , AND SWORN TO BEFORE THE SUPERVISING ATTORNEY AS 18
DESCRIBED IN ITEM (5)(III)2 OF THIS SUBSECTION ; 19
(2) At the time the testator signs the will, the testator shall be a resident 20
of, or physically located in, the State; 21
(3) Each witness who is in the electronic presence of the testator when the 22
witness attests and signs the will, or provides an electronic signature on the will, shall be 23
a resident of the United States and be physically located in the United States at the time 24
the witness attests and signs the will; 25
(4) The testator and witnesses shall sign the same will or any counterpart 26
thereof; and 27
(5) The supervising attorney shall create a certified will that shall include: 28
(i) A true, complete, and accurate paper version of all pages of the 29
will including the original signatures or electronic signatures of the testator and all 30
witnesses; 31
SENATE BILL 36 3
(ii) A signed original paper certification by the supervising attorney 1
stating the date that the supervising attorney observed the testator and witnesses sign the 2
will and that the supervising attorney took reasonable steps to verify: 3
1. That the certified will includes a true, complete, and 4
accurate paper version of all pages of the will; 5
2. That the signatures contained in the certified will are the 6
original signatures of each party signing the same paper will, or any counterpart thereof, 7
and electronic signatures of each party signing the same electronic will, or any counterpart 8
thereof; 9
3. That the testator and each of the witnesses signed the 10
same will or any counterpart thereof; 11
4. The identity of each witness and that each witness who 12
was not in the physical presence of the testator when the witness attested and signed the 13
will, or provided an electronic signature on the will, was a resident of the United States 14
and physically located in the United States at the time that the witness attested and signed 15
the will; and 16
5. The identity of the testator and that the testator was a 17
resident of, or was physically located in, the State at the time that the testator signed the 18
will; and 19
(iii) An acknowledgement of the testator and the affidavits of the 20
attesting witnesses before [a]: 21
1. A notary public, under seal, attached or annexed to the 22
will, in substantially the following form and content: 23
The State of Maryland. 24
County of ____________. 25
Before me, the undersigned [authority/attorney] NOTARY PUBLIC , on this day personally 26
appeared ____________, ____________, and ____________, known to me to be the testator 27
and the witnesses, respectively, whose names are signed to the attached or foregoing 28
instrument and, all of these persons being by me duly sworn, ____________, the testator, 29
declared to me and to the witnesses in my physical or electronic presence that the said 30
instrument is the testator’s will, that the testator is of sound mind, and that the testator 31
had willingly signed or willingly directed another to sign the will under no constraint or 32
undue influence, and executed it in the physical or [remote] ELECTRONIC presence of the 33
witnesses as a free and voluntary act for the purposes therein expressed, and that the 34
witnesses, in the physical or electronic presence and at the request of the testator, signed 35
the will as witnesses, and that to the best of the witnesses’ knowledge the testator was at 36
least 18 years old, of sound mind, and under no constraint or undue influence. 37
4 SENATE BILL 36
____________ Testator 1
____________ Witness 2
____________ Witness 3
Subscribed, sworn and acknowledged before me by ____________, the testator, and 4
subscribed and sworn to before me by ____________ and ___________, witnesses, this ______ 5
day of _________, ____. 6
__________ Seal ____________ Notary Public; OR 7
2. THE SUPERVISING ATTOR NEY, ATTACHED OR 8
ANNEXED TO THE WILL , IN SUBSTANTIALLY THE FOLLOWING FORM AND CONT ENT: 9
BEFORE ME , THE UNDERSIGNED SUPERVISING ATTORNEY, ON THIS DAY 10
PERSONALLY APPEARED ____________, ____________, AND ____________, KNOWN TO 11
ME TO BE THE TESTATO R AND THE WITNESSES , RESPECTIVELY , WHOSE NAMES ARE 12
SIGNED TO THE ATTACH ED OR FOREGOING INSTRUM ENT, AND THE TESTATOR 13
DECLARED TO ME AND T O THE WITNESSES IN M Y PHYSICAL OR ELECTR ONIC 14
PRESENCE THAT THE SA ID INSTRUMENT IS THE TESTATOR’S WILL, THAT THE 15
TESTATOR IS OF SOUND MIND, AND THAT THE TESTATO R HAD WILLINGLY SIGN ED OR 16
WILLINGLY DIRECTED A NOTHER TO SIGN THE W ILL UNDER NO CONSTRA INT OR 17
UNDUE INFLUENCE , AND EXECUTED IT IN T HE PHYSICAL OR ELECT RONIC PRESENCE 18
OF THE WITNESSES AS A FREE AND VOLUNTARY ACT FOR THE PURPOSES THEREIN 19
EXPRESSED, AND THAT THE WITNESS ES, IN THE PHYSI CAL OR ELECTRONIC 20
PRESENCE AND AT THE REQUEST OF THE TESTA TOR, SIGNED THE WILL AS 21
WITNESSES, AND THAT TO THE BEST OF THE WITNESSES ’ KNOWLEDGE THE 22
TESTATOR WAS AT LEAS T 18 YEARS OLD, OF SOUND MIND , AND UNDER NO 23
CONSTRAINT OR UNDUE INFLUENCE. 24
____________ TESTATOR 25
____________ WITNESS 26
____________ WITNESS 27
SUBSCRIBED, SWORN AND ACKNOWLEDG ED BEFORE ME BY ____________, THE 28
TESTATOR, AND SUBSCRIBED AND S WORN TO BEFORE ME BY ____________ AND 29
___________, WITNESSES, THIS ______ DAY OF _________, ____. 30
____________ SUPERVISING ATTORNEY . 31
(d) An electronic will or remotely witnessed will executed under this subsection 32
shall satisfy the following requirements: 33
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(1) At the time the testator and witnesses sign the will, the testator and all 1
witnesses shall be in the physical presence or electronic presence of one another; 2
(2) The requirements under subsection (c)(2) through (4) of this section 3
shall be satisfied; and 4
(3) The testator shall create a certified will that shall include: 5
(i) A true, complete, and accurate paper version of all pages of the 6
will including the original signatures or electronic signatures of the testator and all 7
witnesses; and 8
(ii) An original paper certification signed and acknowledged by the 9
testator in the physical presence or electronic presence of a notary public, who may not be 10
one of the witnesses, stating: 11
1. The date that the testator and witnesses signed the will; 12
and 13
2. That the testator took reasonable steps to verify the same 14
facts and information required under subsection (c)(5)(ii) of this section. 15
(e) (1) Once the supervising attorney or testator creates a certified will as 16
provided in subsection (c) or (d) of this section, the certified will shall be deemed to be the 17
original will of the testator for all purposes under this article. 18
(2) The date of execution for a certified will described under paragraph (1) 19
of this subsection shall be the date of execution stated in the certified will. 20
(f) A will executed in conformance with the provisions of Executive Order 21
20.04.10.01, authorizing remote witnessing and electronic signing of certain documents, 22
shall be deemed to have been signed and witnessed in conformity with this section if the 23
will was signed and witnessed during the time that the executive order was in effect. 24
Article – State Government 25
18–214. 26
(a) [Except for a notarial act being performed with respect to a will, as defined in 27
§ 1–101 of the Estates and Trusts Article, or a trust instrument, as defined in § 14.5–103 28
of the Estates and Trusts Article, a] A notary public located in this State may perform a 29
notarial act using communication technology for a remotely located individual if: 30
(1) the notary public: 31
(i) has personal knowledge under § 18–206(a) of this subtitle of the 32
identity of the remotely located individual; 33 6 SENATE BILL 36
(ii) has satisfactory evidence of the identity of the remotely located 1
individual by verification on oath or affirmation from a credible witness appearing before 2
and identified by the notary public under § 18–206(b) of this subtitle or as a remotely 3
located individual under this section; or 4
(iii) has obtained satisfactory evidence of the identity of the remotely 5
located individual by: 6
1. remote presentation of an identification credential 7
described in § 18–206(b) of this subtitle; 8
2. credential analysis of the identification credential; and 9
3. identity proofing of the individual; 10
(2) the notary public is reasonably able to confirm that a record before the 11
notary public is the same record in which the remotely located individual made a statement 12
or on which the individual executed a signature; 13
(3) the notary public, or person acting on behalf and at the direction of the 14
notary public, creates an audio–visual recording of the performance of the notarial act; and 15
(4) for a remotely located individual located outside the United States: 16
(i) the record: 17
1. is to be filed with or relates to a matter before a public 18
official or court, governmental entity, or other entity subject to the jurisdiction of the United 19
States; or 20
2. involves property located in the territorial jurisdiction of 21
the United States or involves a transaction substantially connected with the United States; 22
and 23
(ii) the notary public has no actual knowledge that the act of making 24
the statement or signing the record is prohibited by the foreign state in which the remotely 25
located individual is located. 26
SECTION 2. AND BE IT FURTHER ENACTED, That this Act is an emergency 27
measure, is necessary for the immediate preservation of the public health or safety, has 28
been passed by a yea and nay vote supported by three–fifths of all the members elected to 29
each of the two Houses of the General Assembly, and shall take effect from the date it is 30
enacted. 31