§ 29-1-21-4 — Attestation; electronic signature; self-proving clause; affidavit of compliance

Indiana § 29-1-21-4

• Jurisdiction: Indiana
• Art. 1: PROBATE CODE
• Ch. 21: Electronic Wills

Text

(a) To be valid as a will under this article, an
electronic will must be executed by the electronic signature of the
testator and attested to by the electronic signatures of at least two (2)
witnesses in the following manner:
(1) The testator, the attesting witnesses, and any individual who
signs for the testator under subdivision (4)(B) must be in each
other's presence when the electronic signatures are made in or on
the electronic will. A person, including an attorney or directed
paralegal, who supervises the execution of the electronic will may
act and sign as one (1) of the attesting witnesses if the person
does not sign the electronic will at the testator's direction under
subdivision (4)(B). The testator and witnesses must be able to
interact with each other and the witnesses must be able to observe
the testator and each other as the electronic will is being signed.
(2) The testator and attesting witnesses must comply with:
(A) the prompts, if any, issued by the software being used to
perform the electronic signing; or
(B) the instructions by the person, if any, responsible for
supervising the execution of the electronic will.
(3) The testator must state, in the presence of the attesting
witnesses, that the instrument to be electronically signed is the
testator's will.
(4) The testator must:
(A) electronically sign the electronic will in the presence of the
attesting witnesses; or
(B) direct another adult individual who is not an attesting
witness to sign the electronic will on the testator's behalf in the
presence of the testator and the attesting witnesses.
(5) The attesting witnesses must electronically sign the electronic
will in the presence of:
(A) the testator; and
(B) each other;
after the testator has electronically signed the electronic will.
(6) The:
(A) testator; or
(B) other adult individual who is:
(i) not an attesting witness; and
(ii) acting on behalf of the testator;
must command the software application or user interface to
finalize the electronically signed electronic will as an electronic
record.
The process described in this section may include as part of the
electronic record for the electronic will any identity verification
evidence pertaining to the testator or any document integrity evidence
for the electronic will.
(b) If the testator and the witnesses are not in each other's physical
presence when the electronic will is signed and witnessed and if the
testator and the witnesses use audiovisual technology to satisfy the
presence requirement in subsection (a) and section 3(17) of this
chapter, an attorney or a directed paralegal must supervise the signing
and the witnessing of the electronic will.
(c) Within a reasonable time after an attorney or a directed paralegal
supervises the signing and witnessing of an electronic will in the
manner described in subsection (b), the attorney or directed paralegal
must sign an affidavit of compliance. An affidavit of compliance under
this subsection must be sworn to or affirmed by the signing attorney or
directed paralegal under the penalties of perjury and must contain:
(1) the name and residential address of the testator;
(2) the name and:
(A) residential address; or
(B) business address;
for each witness who signs the electronic will;
(3) the address, city, and state in which the testator is physically
located at the time the testator signs the electronic will;
(4) the city and state in which each attesting witness is physically
located when the witness signs the electronic will as a witness;
(5) a description of the method and form of identification used to
confirm the identity of the testator to the witnesses and
supervising attorney or directed paralegal;
(6) a description of the method used by the supervising attorney
or paralegal, testator, and the witnesses for the purpose of
interacting with each other in real time during the signing
process;
(7) a brief description of the method used to add or capture the
electronic signature of the testator and the witnesses;
(8) the name, business or residential address, and telephone
number of the attorney or directed paralegal who supervised the
execution of the electronic will; and
(9) any other information that the supervising attorney or directed
paralegal considers to be material to:
(A) the testator's capacity to sign a valid will; and
(B) the testator's and witnesses' compliance with subsection (a).
(d) When a party files a petition under IC 29-1-7 to probate an
electronic will that was executed and witnessed in the manner
described in subsection (b), the party shall file a true copy of the
affidavit of compliance under subsection (c) with the petition or at any
time ordered by the court. A party who files a copy of the affidavit of
compliance may redact private information from the affidavit in a
manner consistent with Rule 5 of the Rules on Access to Court
Records. If an electronic will is executed and witnessed under
subsection (c) but without the supervision of an attorney or directed
paralegal and that will is later offered for probate under IC 29-1-7, the
will is voidable in the discretion of the court, upon objection to probate
filed under IC 29-1-7-16, or upon a timely filed will contest under IC 29-1-7-17.
(e) An electronic will may be self-proved:
(1) at the time that it is electronically signed; and
(2) before it is electronically finalized;
by incorporating into the electronic record of the electronic will a
self-proving clause described under subsection (f). An electronic will
is not required to contain an attestation clause or a self-proving clause
in order to be a valid electronic will.
(f) A self-proving clause under subsection (e) must substantially be
in the following form:
"We, the undersigned testator and the undersigned witnesses, whose
names are signed to the attached or foregoing instrument, declare:
(1) That the testator executed the instrument as the testator's will;
(2) That, in the presence of both witnesses, the testator signed the
will or directed another individual who is not one of the witnesses
to sign for the testator in the testator's presence and in the
witnesses' presence;
(3) That the testator executed the will as a free and voluntary act
for the purposes expressed in it;
(4) That each of the witnesses, in the presence of the testator and
each other, signed the will as a witness;
(5) That the testator was of sound mind when the will was
executed; and
(6) That, to the best knowledge of each attesting witness, the
testator was, at the time the will was executed, at least eighteen
(18) years of age or was a member of the armed forces or of the
merchant marine of the United States or its allies.
__________________________________
(insert date)(insert signature of testator)
__________________________________
(insert date)(insert signature of witness)
__________________________________
(insert date)(insert signature of witness)".
A single signature from the testator and from each attesting witness
may be provided for any electronic will bearing or containing a
self-proving clause.
(g) An electronic will that is executed in compliance with
subsection (a) shall not be rendered invalid by the existence of any of
the following attributes:
(1) An attestation clause.
(2) Additional signatures.
(3) A self-proving clause that differs in form from the exemplar
provided in subsection (f).
(4) Any additional language that refers to the circumstances or
manner in which the electronic will was executed.
(h) This section shall be construed in a manner that gives effect to
the testator's intent to execute a valid will.

Legislative History

As added by P.L.40-2018, SEC.2. Amended by P.L.185-2021, SEC.7.