S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7702--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               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:
 
   Section 1. Article 3 of the estates, powers and trusts law is  amended
 by adding a new part 6 to read as follows:
                         PART 6. ELECTRONIC WILLS
 SECTION 3-6.1 SHORT TITLE
         3-6.2 DEFINITIONS
         3-6.3 LAW APPLICABLE TO ELECTRONIC WILL; PRINCIPLES OF EQUITY
         3-6.4 CHOICE OF LAW REGARDING EXECUTION
         3-6.5 EXECUTION OF ELECTRONIC WILL
         3-6.6 HARMLESS ERROR
         3-6.7 REVOCATION
         3-6.8 ELECTRONIC  WILL ATTESTED AND MADE SELF-PROVING AT TIME OF
                 EXECUTION
         3-6.9 CERTIFICATION OF PAPER COPY
 § 3-6.1 SHORT TITLE
   THIS PART MAY BE CITED AS THE NEW YORK ELECTRONIC WILLS ACT.
 § 3-6.2 DEFINITIONS
   FOR PURPOSES OF THIS PART THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:
   (A) "ELECTRONIC"  MEANS  RELATING  TO  TECHNOLOGY  HAVING  ELECTRICAL,
 DIGITAL,  MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR CAPA-
 BILITIES.
   (B) "ELECTRONIC PRESENCE" MEANS THE RELATIONSHIP OF TWO OR MORE  INDI-
 VIDUALS  IN DIFFERENT LOCATIONS COMMUNICATING IN REAL TIME BY ELECTRONIC
 MEANS TO THE SAME EXTENT AS IF THE INDIVIDUALS WERE  PHYSICALLY  PRESENT
 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
 
   (C)  "ELECTRONIC WILL" MEANS A WILL EXECUTED ELECTRONICALLY IN COMPLI-
 ANCE WITH PARAGRAPH (A) OF SECTION 3-6.5.
   (D)  "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.
   (E) "SIGN" MEANS, WITH PRESENT  INTENT  TO  AUTHENTICATE  OR  ADOPT  A
 RECORD:    (1) TO EXECUTE OR ADOPT A TANGIBLE SYMBOL; OR (2) TO AFFIX TO
 OR LOGICALLY ASSOCIATE WITH THE RECORD AN ELECTRONIC SYMBOL OR PROCESS.
   (F) "STATE" MEANS A STATE OF THE UNITED STATES, THE DISTRICT OF COLUM-
 BIA, PUERTO RICO, THE UNITED STATES VIRGIN ISLANDS, OR ANY TERRITORY  OR
 INSULAR  POSSESSION  SUBJECT  TO  THE JURISDICTION OF THE UNITED STATES.
 THE TERM SHALL ALSO INCLUDE A FEDERALLY RECOGNIZED INDIAN TRIBE.
   (G) "WILL" INCLUDES A CODICIL AND  ANY  TESTAMENTARY  INSTRUMENT  THAT
 MERELY  APPOINTS AN EXECUTOR, REVOKES OR REVISES ANOTHER WILL, NOMINATES
 A GUARDIAN, OR EXPRESSLY EXCLUDES OR LIMITS THE RIGHT OF  AN  INDIVIDUAL
 OR  CLASS  TO  SUCCEED  TO PROPERTY OF THE DECEDENT PASSING BY INTESTATE
 SUCCESSION.
 § 3-6.3 LAW APPLICABLE TO ELECTRONIC WILL; PRINCIPLES OF EQUITY
   AN ELECTRONIC WILL IS A WILL FOR ALL  PURPOSES  OF  THE  LAW  OF  THIS
 STATE. THE LAW OF THIS STATE APPLICABLE TO WILLS AND PRINCIPLES OF EQUI-
 TY APPLY TO AN ELECTRONIC WILL, EXCEPT AS MODIFIED BY THIS ACT.
 § 3-6.4 CHOICE OF LAW REGARDING EXECUTION
   A  WILL  EXECUTED  ELECTRONICALLY BUT NOT IN COMPLIANCE WITH PARAGRAPH
 (A) OF SECTION 3-6.5 IS AN ELECTRONIC WILL UNDER THIS ACT IF EXECUTED IN
 COMPLIANCE WITH THE LAW OF THE JURISDICTION WHERE THE TESTATOR IS:
   (A) PHYSICALLY LOCATED WHEN THE WILL IS SIGNED; OR
   (B) DOMICILED OR RESIDES WHEN THE WILL IS SIGNED OR WHEN THE  TESTATOR
 DIES.
 § 3-6.5 EXECUTION OF ELECTRONIC WILL
   (A)  SUBJECT  TO PARAGRAPH (D) OF SECTION 3-6.8 AND EXCEPT AS PROVIDED
 IN SECTION 3-6.6, AN ELECTRONIC WILL MUST BE:
   (1) A RECORD THAT IS READABLE AS TEXT AT THE  TIME  OF  SIGNING  UNDER
 SUBPARAGRAPH TWO;
   (2) SIGNED BY:
   (A) THE TESTATOR; OR
   (B) ANOTHER INDIVIDUAL IN THE TESTATOR'S NAME, IN THE TESTATOR'S PHYS-
 ICAL PRESENCE AND BY THE TESTATOR'S DIRECTION; AND
   (3) EITHER:
   (A)  SIGNED  IN THE PHYSICAL OR ELECTRONIC PRESENCE OF THE TESTATOR BY
 AT LEAST TWO INDIVIDUALS, EACH OF WHOM IS A  RESIDENT  OF  A  STATE  AND
 WITHIN A REASONABLE TIME AFTER WITNESSING:
   (I) THE SIGNING OF THE WILL UNDER SUBPARAGRAPH TWO; OR
   (II)  THE  TESTATOR'S  ACKNOWLEDGMENT OF THE SIGNING OF THE WILL UNDER
 SUBPARAGRAPH TWO OR ACKNOWLEDGEMENT OF THE WILL; OR
   (B) ACKNOWLEDGED BY THE TESTATOR BEFORE AND IN THE PHYSICAL  OR  ELEC-
 TRONIC PRESENCE OF A NOTARY PUBLIC OR OTHER INDIVIDUAL AUTHORIZED BY LAW
 TO NOTARIZE RECORDS ELECTRONICALLY.
   (B)  INTENT  OF  A  TESTATOR THAT THE RECORD UNDER SUBPARAGRAPH ONE OF
 PARAGRAPH (A) BE THE TESTATOR'S ELECTRONIC WILL MAY  BE  ESTABLISHED  BY
 EXTRINSIC EVIDENCE.
   (C)  NOTWITHSTANDING  PARAGRAPH  (D) OF SUBDIVISION ONE OF SECTION ONE
 HUNDRED THIRTY-FIVE-C OF THE EXECUTIVE LAW, FOR PURPOSES OF THIS SECTION
 ELECTRONIC WILLS MAY BE NOTARIZED BY NOTARY PUBLICS THAT ARE  NOT  PHYS-
 ICALLY PRESENT IN THE STATE OF NEW YORK.
 § 3-6.6 HARMLESS ERROR
 A. 7702--A                          3

   ALTHOUGH  A DOCUMENT OR WRITING ADDED UPON A DOCUMENT WAS NOT EXECUTED
 IN COMPLIANCE WITH SECTION 3-2.1,  THE  DOCUMENT  OR  WRITING  SHALL  BE
 TREATED  AS  IF  IT HAD BEEN EXECUTED IN COMPLIANCE WITH THAT SECTION IF
 THE PROPONENT OF THE  DOCUMENT  OR  WRITING  ESTABLISHES  BY  CLEAR  AND
 CONVINCING  EVIDENCE  THAT THE DECEDENT INTENDED THE DOCUMENT OR WRITING
 TO CONSTITUTE ANY OF THE FOLLOWING:
   (A) THE DECEDENT'S WILL.
   (B) A PARTIAL OR COMPLETE REVOCATION OF THE DECEDENT'S WILL.
   (C) AN ADDITION TO OR AN ALTERATION OF THE DECEDENT'S WILL.
   (D) A PARTIAL OR COMPLETE REVIVAL OF THE DECEDENT'S  FORMERLY  REVOKED
 WILL OR OF A FORMERLY REVOKED PORTION OF THE DECEDENT'S WILL.
 § 3-6.7 REVOCATION
   (A) AN ELECTRONIC WILL MAY REVOKE ALL OR PART OF A PREVIOUS WILL.
   (B) ALL OR PART OF AN ELECTRONIC WILL IS REVOKED BY:
   (1)  A SUBSEQUENT WILL THAT REVOKES ALL OR PART OF THE ELECTRONIC WILL
 EXPRESSLY OR BY INCONSISTENCY; OR
   (2) A PHYSICAL ACT, IF IT IS ESTABLISHED BY  A  PREPONDERANCE  OF  THE
 EVIDENCE  THAT  THE TESTATOR, WITH THE INTENT OF REVOKING ALL OR PART OF
 THE WILL, PERFORMED THE ACT OR DIRECTED ANOTHER INDIVIDUAL WHO PERFORMED
 THE ACT IN THE TESTATOR'S PHYSICAL PRESENCE.
 § 3-6.8 ELECTRONIC WILL  ATTESTED  AND  MADE  SELF-PROVING  AT  TIME  OF
           EXECUTION
   (A)  AN  ELECTRONIC WILL MAY BE SIMULTANEOUSLY EXECUTED, ATTESTED, AND
 MADE SELF-PROVING BY ACKNOWLEDGMENT OF THE TESTATOR  AND  AFFIDAVITS  OF
 THE WITNESSES.
   (B) THE ACKNOWLEDGMENT AND AFFIDAVITS UNDER PARAGRAPH (A) MUST BE:
   (1) MADE BEFORE AND IN THE PHYSICAL OR ELECTRONIC PRESENCE OF AN OFFI-
 CER  AUTHORIZED  TO ADMINISTER OATHS UNDER LAW OF THE STATE IN WHICH THE
 OFFICER IS LOCATED; AND
   (2) EVIDENCED BY THE OFFICER'S CERTIFICATE UNDER OFFICIAL SEAL AFFIXED
 TO OR LOGICALLY ASSOCIATED WITH THE ELECTRONIC WILL.
   (C) THE ACKNOWLEDGMENT AND AFFIDAVITS UNDER PARAGRAPH (A) MUST  BE  IN
 SUBSTANTIALLY  THE  FOLLOWING FORM:  I, ___________________________, THE
 TESTATOR, BEING SWORN, DECLARE TO THE UNDERSIGNED OFFICER  THAT  I  SIGN
 THIS  INSTRUMENT AS MY ELECTRONIC WILL, I WILLINGLY SIGN IT OR WILLINGLY
 DIRECT ANOTHER INDIVIDUAL TO SIGN IT FOR ME, I EXECUTE IT AS  MY  VOLUN-
 TARY  ACT  FOR  THE  PURPOSES  EXPRESSED IN THIS INSTRUMENT, AND I AM 18
 YEARS OF AGE OR OLDER, OF SOUND MIND, AND UNDER NO CONSTRAINT  OR  UNDUE
 INFLUENCE.
 
 ___________________________
           TESTATOR
 
 WE,    ___________________________    AND   ___________________________,
 WITNESSES, BEING SWORN, DECLARE TO  THE  UNDERSIGNED  OFFICER  THAT  THE
 TESTATOR  SIGNED THIS INSTRUMENT AS THE TESTATOR'S ELECTRONIC WILL, THAT
 THE TESTATOR WILLINGLY SIGNED IT OR WILLINGLY DIRECTED ANOTHER  INDIVID-
 UAL  TO  SIGN  FOR THE TESTATOR, AND THAT EACH OF US, IN THE PHYSICAL OR
 ELECTRONIC PRESENCE OF THE TESTATOR, SIGNS THIS INSTRUMENT AS WITNESS TO
 THE TESTATOR'S SIGNING, AND TO THE BEST OF OUR KNOWLEDGE THE TESTATOR IS
 18 YEARS OF AGE OR OLDER, OF SOUND MIND,  AND  UNDER  NO  CONSTRAINT  OR
 UNDUE INFLUENCE.
 
 ___________________________
           WITNESS
 A. 7702--A                          4
 
 ___________________________
 
           WITNESS
           CERTIFICATE OF OFFICER:
           STATE OF __________
           COUNTY OF __________
 
 SUBSCRIBED,    SWORN    TO,    AND    ACKNOWLEDGED    BEFORE    ME    BY
 ___________________________, THE TESTATOR, AND SUBSCRIBED AND  SWORN  TO
 BEFORE        ME        BY        ___________________________        AND
 ___________________________, WITNESSES, THIS ______ DAY OF ______, ___.
 
 (SEAL)
 
 ________________________________________________
                                 (SIGNED)
 
                 _________________________________________
                           (CAPACITY OF OFFICER)
 
   (D) A SIGNATURE PHYSICALLY OR ELECTRONICALLY AFFIXED TO  AN  AFFIDAVIT
 THAT IS AFFIXED TO OR LOGICALLY ASSOCIATED WITH AN ELECTRONIC WILL UNDER
 THIS  ACT  IS  DEEMED A SIGNATURE OF THE ELECTRONIC WILL UNDER PARAGRAPH
 (A) OF SECTION 3-6.5.
 § 3-6.9 CERTIFICATION OF PAPER COPY
   AN INDIVIDUAL MAY CREATE A CERTIFIED PAPER COPY OF AN ELECTRONIC  WILL
 BY AFFIRMING UNDER PENALTY OF PERJURY THAT A PAPER COPY OF THE ELECTRON-
 IC  WILL  IS A COMPLETE, TRUE, AND ACCURATE COPY OF THE ELECTRONIC WILL.
 IF THE ELECTRONIC WILL IS MADE SELF-PROVING, THE CERTIFIED PAPER COPY OF
 THE WILL MUST INCLUDE THE SELF-PROVING AFFIDAVITS.
   § 2. The opening paragraph of paragraph (a) of section  3-2.1  of  the
 estates, powers and trusts law is amended to read as follows:
   Except  for  nuncupative and holographic wills authorized by 3-2.2 AND
 ELECTRONIC WILLS AUTHORIZED BY PART SIX OF THIS ARTICLE, every will must
 be in writing, and executed and attested in the following manner:
   § 3. Subdivision 1 of section 307 of  the  state  technology  law,  as
 amended  by  chapter  543  of  the  laws  of 2023, is amended to read as
 follows:
   1. To any document providing for the disposition  of  an  individual's
 person or property upon death or incompetence, or appointing a fiduciary
 of  an  individual's  person or property, including, without limitation,
 wills,  UNLESS SUCH WILL IS EXECUTED PURSUANT  TO  PART  SIX  OF   ARTI-
 CLE  THREE    OF  THE  ESTATES, POWERS AND TRUSTS LAW, trusts, decisions
 consenting to orders not to resuscitate, powers of attorney  and  health
 care  proxies, with the exception of: (a) contractual beneficiary desig-
 nations; (b) the  registration  of  making,  amending,  or  revoking  an
 anatomical  gift  under  section  forty-three  hundred ten of the public
 health law; (c) documents and forms authorizing  or  accepting  funeral,
 cemetery  and cremation services; and (d) the execution of a valid power
 of attorney for the purpose of transferring  a  salvage  certificate  of
 title  and  the execution of an odometer and damage disclosure statement
 in connection with such title whenever  a  loss  in  connection  with  a
 private  automobile  is  determined  by an insurer to be a total loss or
 constructive total loss under section three thousand four hundred twelve
 of the insurance law.
   § 4. This act shall take effect immediately.