STATE OF NEW YORK ________________________________________________________________________ 7702--A 2023-2024 Regular Sessions IN ASSEMBLY June 6, 2023 ___________ Introduced by M. of A. LAVINE, JACKSON -- read once and referred to the Committee on Judiciary -- recommitted to the Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the estates, powers and trusts law and the state tech- nology law, in relation to electronic wills The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 3 of the estates, powers and trusts law is amended 2 by adding a new part 6 to read as follows: 3 PART 6. ELECTRONIC WILLS 4 Section 3-6.1 Short title 5 3-6.2 Definitions 6 3-6.3 Law applicable to electronic will; principles of equity 7 3-6.4 Choice of law regarding execution 8 3-6.5 Execution of electronic will 9 3-6.6 Harmless error 10 3-6.7 Revocation 11 3-6.8 Electronic will attested and made self-proving at time of 12 execution 13 3-6.9 Certification of paper copy 14 § 3-6.1 Short title 15 This part may be cited as the New York electronic wills act. 16 § 3-6.2 Definitions 17 For purposes of this part the following terms shall have the following 18 meanings: 19 (a) "Electronic" means relating to technology having electrical, 20 digital, magnetic, wireless, optical, electromagnetic, or similar capa- 21 bilities. 22 (b) "Electronic presence" means the relationship of two or more indi- 23 viduals in different locations communicating in real time by electronic 24 means to the same extent as if the individuals were physically present 25 in the same location. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11398-03-4
A. 7702--A 2 1 (c) "Electronic will" means a will executed electronically in compli- 2 ance with paragraph (a) of section 3-6.5. 3 (d) "Record" means information that is inscribed on a tangible medium 4 or that is stored in an electronic or other medium and is retrievable in 5 perceivable form. 6 (e) "Sign" means, with present intent to authenticate or adopt a 7 record: (1) to execute or adopt a tangible symbol; or (2) to affix to 8 or logically associate with the record an electronic symbol or process. 9 (f) "State" means a state of the United States, the District of Colum- 10 bia, Puerto Rico, the United States Virgin Islands, or any territory or 11 insular possession subject to the jurisdiction of the United States. 12 The term shall also include a federally recognized Indian tribe. 13 (g) "Will" includes a codicil and any testamentary instrument that 14 merely appoints an executor, revokes or revises another will, nominates 15 a guardian, or expressly excludes or limits the right of an individual 16 or class to succeed to property of the decedent passing by intestate 17 succession. 18 § 3-6.3 Law applicable to electronic will; principles of equity 19 An electronic will is a will for all purposes of the law of this 20 state. The law of this state applicable to wills and principles of equi- 21 ty apply to an electronic will, except as modified by this act. 22 § 3-6.4 Choice of law regarding execution 23 A will executed electronically but not in compliance with paragraph 24 (a) of section 3-6.5 is an electronic will under this act if executed in 25 compliance with the law of the jurisdiction where the testator is: 26 (a) physically located when the will is signed; or 27 (b) domiciled or resides when the will is signed or when the testator 28 dies. 29 § 3-6.5 Execution of electronic will 30 (a) Subject to paragraph (d) of section 3-6.8 and except as provided 31 in section 3-6.6, an electronic will must be: 32 (1) a record that is readable as text at the time of signing under 33 subparagraph two; 34 (2) signed by: 35 (A) the testator; or 36 (B) another individual in the testator's name, in the testator's phys- 37 ical presence and by the testator's direction; and 38 (3) either: 39 (A) signed in the physical or electronic presence of the testator by 40 at least two individuals, each of whom is a resident of a state and 41 within a reasonable time after witnessing: 42 (i) the signing of the will under subparagraph two; or 43 (ii) the testator's acknowledgment of the signing of the will under 44 subparagraph two or acknowledgement of the will; or 45 (B) acknowledged by the testator before and in the physical or elec- 46 tronic presence of a notary public or other individual authorized by law 47 to notarize records electronically. 48 (b) Intent of a testator that the record under subparagraph one of 49 paragraph (a) be the testator's electronic will may be established by 50 extrinsic evidence. 51 (c) Notwithstanding paragraph (d) of subdivision one of section one 52 hundred thirty-five-c of the executive law, for purposes of this section 53 electronic wills may be notarized by notary publics that are not phys- 54 ically present in the state of New York. 55 § 3-6.6 Harmless error
A. 7702--A 3 1 Although a document or writing added upon a document was not executed 2 in compliance with section 3-2.1, the document or writing shall be 3 treated as if it had been executed in compliance with that section if 4 the proponent of the document or writing establishes by clear and 5 convincing evidence that the decedent intended the document or writing 6 to constitute any of the following: 7 (a) The decedent's will. 8 (b) A partial or complete revocation of the decedent's will. 9 (c) An addition to or an alteration of the decedent's will. 10 (d) A partial or complete revival of the decedent's formerly revoked 11 will or of a formerly revoked portion of the decedent's will. 12 § 3-6.7 Revocation 13 (a) An electronic will may revoke all or part of a previous will. 14 (b) All or part of an electronic will is revoked by: 15 (1) a subsequent will that revokes all or part of the electronic will 16 expressly or by inconsistency; or 17 (2) a physical act, if it is established by a preponderance of the 18 evidence that the testator, with the intent of revoking all or part of 19 the will, performed the act or directed another individual who performed 20 the act in the testator's physical presence. 21 § 3-6.8 Electronic will attested and made self-proving at time of 22 execution 23 (a) An electronic will may be simultaneously executed, attested, and 24 made self-proving by acknowledgment of the testator and affidavits of 25 the witnesses. 26 (b) The acknowledgment and affidavits under paragraph (a) must be: 27 (1) made before and in the physical or electronic presence of an offi- 28 cer authorized to administer oaths under law of the state in which the 29 officer is located; and 30 (2) evidenced by the officer's certificate under official seal affixed 31 to or logically associated with the electronic will. 32 (c) The acknowledgment and affidavits under paragraph (a) must be in 33 substantially the following form: I, ___________________________, the 34 testator, being sworn, declare to the undersigned officer that I sign 35 this instrument as my electronic will, I willingly sign it or willingly 36 direct another individual to sign it for me, I execute it as my volun- 37 tary act for the purposes expressed in this instrument, and I am 18 38 years of age or older, of sound mind, and under no constraint or undue 39 influence. 40 ___________________________ 41 Testator 42 We, ___________________________ and ___________________________, 43 witnesses, being sworn, declare to the undersigned officer that the 44 testator signed this instrument as the testator's electronic will, that 45 the testator willingly signed it or willingly directed another individ- 46 ual to sign for the testator, and that each of us, in the physical or 47 electronic presence of the testator, signs this instrument as witness to 48 the testator's signing, and to the best of our knowledge the testator is 49 18 years of age or older, of sound mind, and under no constraint or 50 undue influence. 51 ___________________________ 52 Witness
A. 7702--A 4 1 ___________________________ 2 Witness 3 Certificate of officer: 4 State of __________ 5 County of __________ 6 Subscribed, sworn to, and acknowledged before me by 7 ___________________________, the testator, and subscribed and sworn to 8 before me by ___________________________ and 9 ___________________________, witnesses, this ______ day of ______, ___. 10 (Seal) 11 ________________________________________________ 12 (Signed) 13 _________________________________________ 14 (Capacity of officer) 15 (d) A signature physically or electronically affixed to an affidavit 16 that is affixed to or logically associated with an electronic will under 17 this act is deemed a signature of the electronic will under paragraph 18 (a) of section 3-6.5. 19 § 3-6.9 Certification of paper copy 20 An individual may create a certified paper copy of an electronic will 21 by affirming under penalty of perjury that a paper copy of the electron- 22 ic will is a complete, true, and accurate copy of the electronic will. 23 If the electronic will is made self-proving, the certified paper copy of 24 the will must include the self-proving affidavits. 25 § 2. The opening paragraph of paragraph (a) of section 3-2.1 of the 26 estates, powers and trusts law is amended to read as follows: 27 Except for nuncupative and holographic wills authorized by 3-2.2 and 28 electronic wills authorized by part six of this article, every will must 29 be in writing, and executed and attested in the following manner: 30 § 3. Subdivision 1 of section 307 of the state technology law, as 31 amended by chapter 543 of the laws of 2023, is amended to read as 32 follows: 33 1. To any document providing for the disposition of an individual's 34 person or property upon death or incompetence, or appointing a fiduciary 35 of an individual's person or property, including, without limitation, 36 wills, unless such will is executed pursuant to part six of arti- 37 cle three of the estates, powers and trusts law, trusts, decisions 38 consenting to orders not to resuscitate, powers of attorney and health 39 care proxies, with the exception of: (a) contractual beneficiary desig- 40 nations; (b) the registration of making, amending, or revoking an 41 anatomical gift under section forty-three hundred ten of the public 42 health law; (c) documents and forms authorizing or accepting funeral, 43 cemetery and cremation services; and (d) the execution of a valid power 44 of attorney for the purpose of transferring a salvage certificate of 45 title and the execution of an odometer and damage disclosure statement 46 in connection with such title whenever a loss in connection with a 47 private automobile is determined by an insurer to be a total loss or 48 constructive total loss under section three thousand four hundred twelve 49 of the insurance law. 50 § 4. This act shall take effect immediately.