by Jonathan A. Nelson
With the Virginia legislature past the halfway point for its 2025 legislative session, I see that this year’s iteration of electronic estate plan documents has died in committee. While variations on this theme are introduced every year (and while I don’t usually wade publicly into politics), there are a few good reasons to avoid electronic estate plan documents, even if you do live somewhere that has authorized them.
Since the 1677 Statute of Frauds in England, there has been a high level of formality required for fiduciary documents. The documents set forth a person’s instructions in circumstances where they cannot personally attend to them (whether a will, which only takes effect after the death of the testator, or a power of attorney, which is utilized while the principal is physically absent). By the end of the 1800s, formality reached a high-water mark where documents were thrown out for small failures, such as a witness leaving the room then coming back or a testator signing a sealed envelope containing a will but not the will itself. Over time since then, the pendulum has swung in the opposite direction, with courts approving for probate notes by the attorney that the testator had never seen, a digital page from an electronic notetaking program, and (in one Australian case) an unsent text message.
In Virginia, there is a statute setting out the required formalities (Va. Code § 64.2-403), but also a “savings statute” (Va. Code § 64.2-404) allowing a judge to find that a document was intended as a will notwithstanding failing certain formalities. The statute nonetheless makes clear that the one unwaivable formality is the testator’s signature; the case law requires that the document itself be intended as a will, and merely expressing intent to make a gift in a future will is insufficient.
The debate on level of formality is often cast as finding the balance between allowing a person to freely express their wishes and making sure they are in fact firm intentions and not just passing thoughts. There is a third part to the equation often left out, however: the people implementing the documents. An executor must swear that the document presented is, to the best of his knowledge, the last will of the deceased; he is then charged with administering the estate in accordance with those instructions. On either count, he is at some risk if he has sworn that oath and begun paying creditors or making distributions and then someone shows up later with a text message. This risk is present for physical documents with signatures, too, but at a much lower threshold since a testator would tend to keep important documents where they can be found. There are implementation problems even for a document like a power of attorney – an agent presenting an original physical copy (say, at a bank) is helpful authentication that the power has not been revoked, but an electronic copy cannot be pulled back in the same way.
As much as electronic indications of agreement or consent are useful for internet commerce and everything from youth sports leagues to land transactions, some documents are so important that the formalities of using paper are still very helpful, and at the top of my list are wills and powers of attorney.
Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.