86R6027 MTB-F
By: Longoria H.B. No. 3848
A BILL TO BE ENTITLED
AN ACT
relating to adoption of the Electronic Wills Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 2, Estates Code, is amended by
adding Chapter 259 to read as follows:
CHAPTER 259. ELECTRONIC WILLS
Sec. 259.001. SHORT TITLE. This chapter may be cited as
the Electronic Wills Act.
Sec. 259.002. DEFINITIONS. In this chapter:
(1) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(2) "Electronic notarial certificate" has the meaning
assigned by Section 406.101, Government Code.
(3) "Electronic will" means a will executed in
compliance with Section 259.005.
(4) "Online notary public" has the meaning assigned by
Section 406.101, Government Code.
(5) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(6) "Sign" means, with present intent to authenticate
or adopt a record:
(A) to execute or adopt a tangible symbol; or
(B) to affix to or logically associate with the
record an electronic symbol, sound, or process.
Sec. 259.0025. ELECTRONIC PRESENCE. For purposes of this
chapter, two individuals are in each other's "electronic presence"
if the individuals are in different physical locations but able to
communicate simultaneously by sight and sound, with accommodation
for a testator or witness who has limited ability in sight or
hearing.
Sec. 259.003. COMMON LAW AND PRINCIPLES OF EQUITY. The
common law and principles of equity supplement this chapter except
to the extent modified by this chapter or state law other than this
chapter.
Sec. 259.004. WHO MAY MAKE AN ELECTRONIC WILL. An
individual who may make a will under the law of this state other
than this chapter may make an electronic will.
Sec. 259.005. EXECUTION OF ELECTRONIC WILL. (a) An
electronic will must be in a record perceivable as text that is:
(1) signed, with the intent that the record be the
testator's electronic will, by:
(A) the testator; or
(B) another individual in the testator's name, in
the testator's conscious physical or electronic presence, and at
the testator's direction; and
(2) signed by at least two credible individuals who
are at least 14 years of age, each of whom signed in the physical or
electronic presence of the testator.
(b) Intent of a testator that a record be the testator's
electronic will may be established by extrinsic evidence.
Sec. 259.006. ELECTRONIC WILL MADE SELF-PROVING IF ALL
WITNESSES PHYSICALLY PRESENT. (a) An electronic will with all
attesting witnesses physically present in the same location as the
testator may be made self-proving by acknowledgment of the testator
and affidavits of the witnesses.
(b) An acknowledgment and the affidavits under Subsection
(a) must be:
(1) made before an officer authorized to administer
oaths under law of the state in which execution occurs, who is
physically present in the same location as the testator and
attesting witnesses; and
(2) evidenced by the officer's certificate under
official seal logically associated with the electronic will.
(c) The acknowledgment and affidavits under Subsection (a)
must be in substantially the following form:
Before me, the undersigned authority, on this day personally
appeared _____________, _____________, and _____________, known to
me to be the testator and witnesses, respectively, who signed their
names to this record in their respective capacities, and all of said
persons being by me duly sworn, the said _____________, testator,
declared to me and to the said witnesses in my presence that this
record is [his/her] electronic will, and that [he/she] had
willingly made and executed it as [his/her] free act and deed; and
the said witnesses, each on [his/her] oath stated to me, in the
physical presence and hearing of the said testator, that the said
testator had declared to them that this record is [his/her]
electronic will, and that [he/she] executed same as such and wanted
each of them to sign it as a witness; and upon their oaths each
witness stated further that they did sign the same as witnesses in
the presence of the said testator and at [his/her] request; that
[he/she] was at that time eighteen years of age or over (or being
under such age, was or had been lawfully married, or was then a
member of the armed forces of the United States, or an auxiliary of
the armed forces of the United States, or the United States Maritime
Service) and was of sound mind; and that each of said witnesses was
then at least fourteen years of age.
___________________________
Testator
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the said _________,
testator, and by the said _____________ and ______________,
witnesses, this _____ day of __________, 20___.
(SEAL)
(Signed) ___________________
(Official Capacity of Officer)
Sec. 259.007. ELECTRONIC WILL MADE SELF-PROVING WHERE ALL
WITNESSES NOT PHYSICALLY PRESENT. (a) In this section,
"authorized person" means:
(1) an individual licensed to practice law in the
United States; or
(2) a court clerk.
(b) An electronic will without all attesting witnesses
physically present in the same location as the testator may be made
self-proving by:
(1) acknowledgment of the testator and affidavits of
the witnesses:
(A) made before an online notary public; and
(B) evidenced by the online notary public's
electronic notarial certificate; or
(2) an authorized person's certification in writing
under Subsection (e) that:
(A) the person is an authorized person;
(B) the testator declared that the record is the
testator's electronic will and that the testator understands the
will's contents;
(C) the testator signed the electronic will in
the electronic or physical presence of each individual who signed
the record as a witness;
(D) the authorized person is satisfied as to the
identity of the testator and the witnesses; and
(E) to the best of the authorized person's
knowledge the testator:
(i) was, at the time of the signing of the
electronic will, 18 years of age or older or, being under such age,
was or had been lawfully married or was then a member of the armed
forces of the United States, or an auxiliary of the armed forces of
the United States, or the United States Maritime Service;
(ii) was of sound mind; and
(iii) willingly made and executed the
electronic will as the testator's free act and deed.
(c) An heir of the testator or a beneficiary under an
electronic will may not act as an authorized person under this
section.
(d) An authorized person under this section submits to the
jurisdiction of the court in the county in which the testator
executes the electronic will.
(e) A certification made under Subsection (b)(2) must be in
substantially the following form:
I, ______________________, an authorized person, certify
that on this ______ day of __________, 20____, at ______________,
______________(city, state), the testator declared the attached
record to be the electronic will of the testator and declared that
the testator understands the contents of the electronic will. I
further certify that the testator, in the electronic or physical
presence of each individual who signed the electronic will as a
witness, signed the electronic will. I further certify that I am
satisfied as to the identity of the testator and the witnesses and
that to the best of my knowledge the testator was, at the time of the
signing of the electronic will, eighteen years of age or over or,
being under such age, was or had been lawfully married or was then a
member of the armed forces of the United States, or an auxiliary of
the armed forces of the United States, or the United States Maritime
Service, was of sound mind, and willingly made and executed the
electronic will as the testator's free act and deed.
___________________________
(Signed)
Sec. 259.008. ELECTRONIC WILL MADE SELF-PROVING AFTER
EXECUTION. (a) An electronic will with all attesting witnesses
physically present in the same location as the testator may be made
self-proving at any time after its execution by the acknowledgment
of the testator and the affidavits of the witnesses.
(b) An acknowledgment and affidavits under Subsection (a)
must be:
(1) made before an officer authorized to administer
oaths under the law of the state in which the acknowledgment occurs;
and
(2) evidenced by the officer's certificate under
official seal, logically associated with the electronic will, in
substantially the following form:
I, ______________________, the testator, and we,
______________________ and ______________________, witnesses,
whose names are signed to the attached or preceding electronic
will, being sworn, declare to the undersigned officer that the
testator signed the record as the testator's electronic will, the
testator willingly made and executed it as the testator's free act
and deed, each of the witnesses, in the physical presence and
hearing of the testator, signed the electronic will as witnesses to
the testator's signing, to the best of each witness's knowledge the
testator was at that time eighteen years of age or over (or being
under such age, was or had been lawfully married, or was then a
member of the armed forces of the United States, or an auxiliary of
the armed forces of the United States, or the United States Maritime
Service) and was of sound mind, and each of the witnesses was then
at least fourteen years of age.
___________________________
Testator
___________________________
Witness
___________________________
Witness
State of __________________
County of _________________
Subscribed and sworn to before me by the said _________,
testator, and by the said _____________ and ______________,
witnesses, this _____ day of __________, 20____.
(SEAL)
(Signed) __________________
(Official Capacity of Officer)
Sec. 259.009. PROOF OF ELECTRONIC WILL. A signature
physically or electronically affixed to an affidavit attached to an
electronic will under this chapter is considered a signature
affixed to the electronic will if necessary to prove the will's
execution.
Sec. 259.010. CHOICE OF LAW AS TO EXECUTION. An electronic
will is validly executed if executed in compliance with the law of
the place where:
(1) the testator is physically located at the time of
execution; or
(2) at the time of execution or at the time of death,
the testator is domiciled, resides, or is a citizen.
Sec. 259.011. REVOCATION. (a) An electronic will or part
of an electronic will is revoked by:
(1) a subsequent will, including an electronic will,
that revokes the previous will or part of the previous will
expressly or by inconsistency; or
(2) a revocatory act, if it is established by clear and
convincing evidence that:
(A) the testator performed the act with the
intent and for the purpose of revoking the will or part of the will;
or
(B) another individual performed the act in the
testator's physical or electronic presence and by the testator's
direction.
(b) An electronic will may revoke a will that is not an
electronic will.
Sec. 259.012. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this chapter, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact it.
Sec. 259.013. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, or
supersedes the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
7001(c)) or authorize electronic delivery of any of the notices
described in Section 103(b) of that Act (15 U.S.C. Section
7003(b)).
SECTION 2. This Act applies to the will of a decedent whose
death is on or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2019.