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