[Federal Register Volume 67, Number 198 (Friday, October 11, 2002)]
[Notices]
[Pages 63379-63381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25942]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
Docket No. 010222048-2229-04
The Wills, Codicils, and Testamentary Trusts Exception to the
Electronic Signatures in Global and National Commerce Act
AGENCY: National Telecommunications and Information Administration
(NTIA), U.S. Department of Commerce
ACTION: Notice, Request For Comments
-----------------------------------------------------------------------
SUMMARY: Section 101 of the Electronic Signatures in Global and
National Commerce Act, Pub. L. No. 106-229, codified at 15 U.S.C.
Sec. Sec. 7001 et seq. (``ESIGN'' or ``the Act''), preserves the legal
effect, validity, and enforceability of signatures and contracts
relating to electronic transactions and electronic signatures used in
the formation of electronic contracts. 15 U.S.C. Sec. 7001(a). Section
103 (a) and (b) of the Act, however, provides that the provisions of
section 101 do not apply to contracts and records governed by statutes
and regulations regarding court documents; probate and domestic law
matters; certain provisions of state uniform commercial codes; utility
service cancellations, real property foreclosure and defaults;
insurance benefits cancellations; product recall notices; and documents
related to hazardous materials and dangerous substances. 15 U.S.C.
Sec. Sec. 7003(a),(b). Section 103 of the Act also requires the
Secretary of Commerce, through the Assistant Secretary for
Communications and Information, to review the operation of these
exceptions to evaluate whether they continue to be necessary for
consumer protection, and to make recommendations to Congress based on
this evaluation. 15 U.S.C. Sec. 7003(c)(1). This Notice is intended to
solicit comments from interested parties for purposes of this
evaluation, specifically
[[Page 63380]]
on the wills, codicils, and testamentary trusts exception to the ESIGN
Act. See 15 U.S.C. Sec. 7003(a)(1). NTIA will publish separate notices
requesting comment on the other exceptions listed in section 103 of the
ESIGN Act.\1\
---------------------------------------------------------------------------
\1\ Comments submitted in response to Federal Register notices
requesting comment on the other exceptions to ESIGN will be
considered as part of the same section 103 evaluation and not as a
separate review of the Act. NTIA is also evaluating the court
documents exception to ESIGN. See 67 Fed.Reg. 56277 (Sept. 3, 2002).
DATES: Written comments and papers are requested to be submitted on or
---------------------------------------------------------------------------
before December 10, 2002.
ADDRESSES: Written comments should be submitted to Josephine Scarlett,
National Telecommunications and Information Administration, 14th Street
and Constitution Avenue, N.W., Washington, DC 20230. Paper submissions
should include a three and one-half inch computer diskette in HTML,
ASCII, Word, or WordPerfect format (please specify version). Diskettes
should be labeled with the name and organizational affiliation of the
filer, and the name of the word processing program used to create the
document. In the alternative, comments may be submitted electronically
to the following electronic mail address: [email protected]. Comments submitted via electronic mail also should
be submitted in one or more of the formats specified above.
FOR FURTHER INFORMATION CONTACT: For questions about this request for
comment, contact: Josephine Scarlett, Attorney, Office of the Chief
Counsel, NTIA, 14th Street and Constitution Avenue, N.W., Washington,
DC 20230, telephone (202) 482-1816 or electronic mail:
[email protected]. Media inquiries should be directed to the
Office of Public Affairs, National Telecommunications and Information
Administration, at (202) 482-7002.
SUPPLEMENTARY INFORMATION:
Background: Electronic Signatures in Global and National Commerce Act
Congress enacted the Electronic Signatures in Global and National
Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000), to facilitate
the use of electronic records and signatures in interstate and foreign
commerce and to remove uncertainty about the validity of contracts
entered into electronically. Section 101 requires, among other things,
that electronic signatures, contracts, and records be given legal
effect, validity, and enforceability. Sections 103(a) and (b) of the
Act provides that the requirements of section 101 shall not apply to
contracts and records governed by statutes and regulations regarding:
court documents and records, probate and domestic law matters;
documents executed under certain provisions of state commercial law;
consumer law covering utility services, real property foreclosures and
defaults, and insurance benefit notices; product recall notices; and
hazardous materials documents.
The statutory language providing for an exception to section 101 of
ESIGN for wills, codicils and testamentary trusts is found in section
103(a) of the Act:
Sec. 103. [15 U.S.C. 7003] Specific Exceptions.
(a) Excepted Requirements.-- The provisions of section 101 shall
not apply to a contract or other record to the extent it is governed
by--
* * * *
(1) a State statute, regulation, or other rule of law governing the
creation and execution of wills, codicils, or testamentary trusts;
* * * *
The statutory language requiring the Assistant Secretary for
Communications and Information to submit a report to Congress on the
results of the evaluation of the section 103 exceptions to the ESIGN
Act is found in section 103(c)(1) of the Act as set forth below.
(c) Review of Exceptions.--
(1) Evaluation required.-- The Secretary of Commerce, acting
through the Assistant Secretary for Communications and Information,
shall review the operation of the exceptions in subsections (a) and (b)
to evaluate, over a period of 3 years, whether such exceptions continue
to be necessary for the protection of consumers. Within 3 years after
the date of enactment of this Act, the Assistant Secretary shall submit
a report to Congress on the results of such evaluation.
Wills, Codicils, and Testamentary Trusts
Wills, codicils, and testamentary trusts are documents used by an
owner (donor or testator) of real or personal property to transfer that
property from the testator to other persons or entities (beneficiaries)
after the death of the testator. State legislatures and state courts
have primary jurisdiction for establishing procedures and rules that
govern wills, codicils, and testamentary trusts when there is some
relationship between the state, and either the property or the
testator. The ESIGN exception for wills, codicils, and testamentary
trusts means that when either of these documents is executed
electronically or using an electronic signature, the document is not
required to be accorded the same legal validity or effect as a paper
document. Section 102(a)(1) of ESIGN provides that the states may adopt
electronic transactions statutes, however, that give the state
exclusive jurisdiction with regard to electronic transactions that
occur within the state. See 15 U.S.C. Sec. 7002(a). This section
allows states to modify, limit, or supersede the application of ESIGN
to electronic transactions that occur within the state law by adopting
either the Uniform Electronic Transactions Act (known as UETA) as
approved and recommended for enactment by the National Conference of
Commissioners on Uniform State Laws (NCCUSL) or a statute that
specifies an alternative procedure for the use and acceptance of
electronic signatures, which complies with the provisions of ESIGN. See
id.
States have used section 102(a)(1) of ESIGN to adopt electronic
transactions laws that exclude state-exclusive areas from the
application of ESIGN or the state's electronic transactions law.
Approximately thirty-nine states have adopted the version of UETA
recommended by NCCUSL or their own version of UETA. See National
Conference of Commissioners on Uniform State Laws at http://www.nccusl.org/nccusl/LegislativeByState.pdf. The legislative history
of UETA enunciated by the NCCUSL provides a rationale for excluding
certain types of documents from the scope of the law. Id. According to
the legislative notes of the Drafting Committee for UETA, some
exclusions were warranted while other areas should not be omitted from
the state UETA laws. See id. at 13-16. The comments on the UETA final
draft states that the exclusion of wills, codicils, and testamentary
trusts is largely salutary given the unilateral context in which the
records are created and the unlikely use of such records in
``transactions'' as defined by UETA. Id. at 14, n. 4. The notes provide
that an electronic transaction is an interaction between two or more
persons, while a document such as a will, trust, or health care power
of attorney evidences a unilateral act that is not covered by the Act.
Id. at 13.
The majority of the states that have passed UETA laws have
expressly excluded wills, codicils, testamentary trusts from the
operation of the state electronic transactions laws. Id. The absence of
an exception in a state's UETA law for wills, codicils, and
testamentary trusts, however, does not automatically make these
documents subject to that law. If the underlying substantive law
requires a paper writing
[[Page 63381]]
or prohibits the use of an electronic signature for the formation of
these documents, electronic documents for wills, codicils, and
testamentary trusts would not be legally valid. For example, the
Maryland Code provides that every will shall be in writing, signed by
the testator, attested to and signed by two or more credible witnesses
in the presence of the testator. Md. Code Ann., Estates and Trusts,
Sec. 4-102. Although the law does not expressly preclude the use of
electronic signatures or documents, the Maryland Rules do not consider
a photocopy or facsimile copy of a will or codicil as an original
document for purposes of filing with the Register of Wills. See Md.
Code Ann., Estates and Trusts, Rule 6-108 (b). Alternatively, another
state's substantive law governing wills and probate matters may allow
documents to be formed in an electronic format or established using an
electronic signature.
The legislative history of the ESIGN Act does not indicate the
intent of the drafters in making an exception for wills, codicils, and
testamentary trusts. However, the personal nature of the information
disclosed in these documents and the relative privacy interests of the
donor and beneficiaries may raise issues that do not arise in legal
proceedings involving commercial or other civil matters. Information
regarding changes in state law to allow electronic filings or access to
documents pertaining to testamentary documents would assist in the
evaluation of whether consumers would be adequately protected if the
wills, codicils, and testamentary trusts exception to ESIGN is
eliminated from the Act.
The ESIGN Section 103 Evaluation
The ESIGN Act directs the Assistant Secretary of Communications and
Information to conduct an evaluation of the exceptions set out in
section 103 of the Act to determine whether the exceptions continue to
be necessary for the protection of consumers, and to submit a report to
Congress on the results of the evaluation no later than June 30, 2003.
The Assistant Secretary for Communications and Information is the chief
administrator of NTIA. As the President's principal advisor on
telecommunications policies pertaining to the Nation's economic and
technological advancement, NTIA is the executive branch agency
responsible for developing and articulating domestic and international
telecommunications policy.
The ESIGN section 103 evaluation of the wills, codicils, and
testamentary trusts exception is intended to evaluate the current
status of the law and procedure regarding this issue, in preparation
for a report to Congress on whether this exception remains necessary to
protect consumers. This evaluation is not a review or analysis of laws
relating to these documents for the purpose of recommending that
Congress draft legislation or propose changes to those laws but to
advise Congress of the current state of law, practice, and procedure
regarding this issue. Comments filed in response to this Notice should
not be considered to have a connection with or impact on ongoing
specific federal and state procedures or rulemaking proceedings
concerning wills, codicils, or testamentary trusts.
Invitation to Comment
NTIA requests that all interested parties submit written comment on
any issue of fact, law, or policy that may assist in the evaluation
required by section 103(c). We invite comment from all parties that may
be affected by the removal of the wills, codicils, and testamentary
trusts exception from the ESIGN Act including, but not limited to,
state agencies and organizations, national and state bar associations,
consumer advocates, and estate law practitioners. The comments
submitted will assist NTIA in evaluating the potential impact of the
removal of the wills, codicils, and testamentary trusts exception from
ESIGN on state estate law, and state electronic transactions laws. The
following questions are intended to provide guidance as to the specific
subject areas to be examined as a part of the evaluation. Commenters
are invited to discuss any relevant issue, regardless of whether it is
identified below.
1. Describe state laws, if any, that allow for the creation,
access, filing or probate wills, codicils, or testamentary trusts are
by electronic means, including video or audio versions.
2. Discuss how statutes that require written documents for trusts,
wills, and testamentary trusts may be affected if the exception is
eliminated from the ESIGN Act.
3. State how consumers would be affected if the exception is
eliminated from the ESIGN Act. Describe the laws or methods that would
be available for consumer protection if the exception for wills,
codicils, and testamentary trusts is eliminated from the Act.
4. Describe any state or federal law, other than ESIGN or UETA,
that requires wills, codicils, and testamentary trusts to be excluded
from the operation of ESIGN or the state uniform electronic
transactions law.
5. Describe uniform laws that allow wills, codicils, or
testamentary trusts to be created, authenticated, filed, or admitted to
probate in an electronic format or using an electronic signature.
6. Discuss any unique issues surrounding the execution of wills,
codicils, and testamentary trusts that may be considered in determining
whether these documents may be processed in an electronic format. This
list is not exhaustive and any other issue relevant to the execution of
wills, codicils, or testamentary trusts may be discussed.
a. privacy and security of information contained in the will;
b. authentication of signatures for testator and witnesses;
c. retention and storage of electronic documents;
d. software compatibility and development; and
e. the impact of advances in technology during the lifetime of the
donor on the probate process.
7. Discuss any other documents related to the probate, filing, or
execution of wills, codicils and testamentary trusts that courts accept
in electronic form (including but not limited to, letters of
administration, notice of appointment of personal representative,
notice of publication, personal notice to heirs).
8. Discuss whether any uniform laws governing wills, codicils, or
testamentary trusts have been adopted and the impact on these laws if
the ESIGN exception for these documents is eliminated (e.g., the
Uniform Probate Code, the Uniform Intestacy, Wills, and Donative
Transfers Act).
9. Provide a description of any instance in which wills, codicils,
or testamentary trusts have been executed in an electronic format.
Discuss whether there are plans to implement procedures for the on-line
execution of such documents.
Please provide copies of studies, reports, opinions, research or
other empirical data referenced in the responses.
Dated: October 7, 2002.
Kathy D. Smith,
Chief Counsel, National Telecommunications and Information
Administration.
[FR Doc. 02-25942 Filed 10-10-02; 8:45 am]
BILLING CODE 3510-60-S