First and foremost, you must not be classified as a vulnerable adult. If the signer is a vulnerable adult, then the electronic will (and any other testamentary documents), may not be executed by remote online notarization.
Florida considers a vulnerable adult as:
“a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”
If you are dishonest with your online notary, and it is later found that you were a vulnerable adult when you executed your electronic will, it will not be valid.
General Requirements for Executing an Electronic Will
Florida law requires that the testator exhibit a minimum level of capacity in order to execute a valid will. Section 732.501 of the Florida Probate Code sets a low threshold of capacity and simply provides: Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.
What is “Sound Mind”
Whether one has testamentary capacity is a question determinable only by mental capacity of the testator at the time he executed his will. The making of a will does not depend upon a sound body but upon a sound mind. The term, “sound mind”, means the ability of the testator “to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” In re Wilmott’s Estate, Fla. 1953, 66 So.2d 465, 467, 40 A.L.R.2d 1399; Newman v. Smith, 1919, 77 Fla. 633, 82 So. 236, 241; Hamilton v. Morgan, 1927, 93 Fla. 311, 112 So. 80; and Neal v. Harrington, 1947, 159 Fla. 381, 31 So.2d 391.
Method of Execution
In order for a will to be valid in Florida, it must conform with the execution requirements set forth in the Florida Probate Code. Pursuant to Section 732.502 of the Florida Probate Code, a will must be in writing and must be signed by the testator at the end of the document. The testator will sign the electronic will by pushing a button under the supervision of a qualified notary public.
The testator’s execution of the will must be witnessed by at least two attesting witnesses who also must sign the will in the presence of the testator and in the presence of each other.
The signer of an electronic will in Florida must be free from all undue influence. Undue influence can be described when the testator (the person signing the will, the “testator”), is induced to act contrary to their own wishes. The provisions in the will are actually another person’s wishes, not actually that of the testator. If it is later proved that a testator signed his or her will under undue influence, the will could be made invalid.
If you are concerned about undue influence, you are encouraged to speak with a licensed Florida attorney prior to executing your will.
Some factors that could be considered undue influence are:
- Was the alleged undue influencer present when the will was signed?
- Was the alleged undue influencer present when the testator expressed a desire to make a will?
- Did the alleged undue influencer recommend the lawyer that drafted the will?
- Did the alleged undue influence know what the will said before it was signed?
- Did the alleged undue influencer give the lawyer instructions on preparing the will?
- Did the alleged undue influencer pick the witnesses of the will?
- Did the alleges undue influencer keep the will after it was signed?