State and federal governments have been focusing on social distancing, quarantining, and isolation measures to prevent the spread of COVID-19. However, they have largely ignored how essential legal documents can be witnessed and notarized in the physical presence of others during the pandemic. This article proposes ways to meet legal requirements to ensure the validity of essential legal documents while practicing social distancing. The short-term approach is for lawyers to adopt a signing protocol for witnessing and notarizing essential legal documents. The long-term solution is to lobby for legislation to permit the remote online signing of legal documents.
This article discusses (a) practical solutions, based on current laws, for contactless or electronic signing of legal documents in order to prevent the spread of COVID-19 and (b) procedures for witnessing and notarizing legal documents remotely before a COVID-19 vaccine is in place and during future disease outbreaks. We recommend a specific legally viable solution that does not require lobbying state legislatures for enactment of remote online notarization (RON) and other virtual solutions. These solutions may be referenced and used as a framework for future legislation — to promote RON as a standard practice, not a practice used only during emergencies.
The United States is experiencing its first wave of COVID-19, the disease caused by the coronavirus. As of May 11, 2020, more than 1.3 million cases of COVID-19 were confirmed and more than 80,000 people had died of COVID-19 across the nation (these numbers are growing every day). COVID-19 is having a national and global impact similar to that of the 1918 flu pandemic. The 1918 flu pandemic had three large waves, infecting about one-third of the world population; it posed great difficulties to society and led to ongoing deaths (50 million) for about 18 months until the summer of 1919.,
Unfortunately, a COVID-19 vaccine may not be available for at least a year. Until then, the number of COVID-19 cases and deaths will increase. Not only is there a need to protect the population medically but also a need to protect the population legally by helping clients write wills, trusts, and powers of attorney. This article discusses and proposes ways to protect clients — both medically and legally — who want wills and other essential legal documents implemented during the pandemic.
Individuals aged 60 and older are considered to be in a COVID-19 high-risk group. These are often the same individuals seeking essential legal documents to protect their assets and to appoint someone to speak and act for them if they cannot do so for themselves (in the case of a possible incapacity or demise, not a definite one). Individuals may want to designate an agent to make financial and health care decisions for them; this is done through a durable power of attorney and a health care power of attorney. They also may want a will (or living trust if time and funding permits) to ensure that their assets will be distributed to the people of their choice after their death. However, getting these legal documents in place is at odds with the need to stay away from other people to curtail the transmission of COVID-19.
III. Essential Legal Documents
Because these legal documents are so important, they require another person to witness and/or notarize them to verify that the principal is an adult, is of sound mind, and understands the importance of the documents. Witnesses also ensure that the person is signing documents freely, without undue influence. (Living wills (advance health care directives) and powers of attorney do not have to be witnessed or notarized in some states; however, the best practice is to have them witnessed or notarized to verify that they truly state the signer’s wishes.) Historically, this meant that legal documents had to be signed in the physical presence of others (i.e., a notary or witnesses).
IV. General Witnessing and Notary Guidelines
A. Legal Documents Other Than Wills
Each state has its own requirements for making powers of attorney and living trusts enforceable. In some states, powers of attorney and living trusts must be notarized in the physical presence of a notary but do not need to be witnessed. As of May 11, 2020, in 32 states with orders in response to the pandemic (42 counting executive orders and older legislation), a person was allowed to be in the presence of the notary online rather than physically (for updated information, see NAELA, State List of Electronic Notary Updates, https://www.naela.org/Web/About_Tab/Advocacy_and_Foundation/Advocacy/Electronic_Notary_Legislation.aspx (accessed May 11, 2020)). Such laws are referred to as RON laws (RON is not to be confused with electronic notarization, or eNotarization, which is done electronically but not remotely — the notary and the signer are in the same place). However, many states, and the District of Columbia and Puerto Rico, still required in-person notarization.,
Every state’s statutes require that a will be in writing and witnessed by at least two other people in the presence of the testator. For example, Missouri statutes, which are patterned after the Uniform Probate Code, provide, “Before any will is probated each of at least two witnesses thereto shall testify to facts showing that the will was executed in accordance with section 474.320.” Section 474.320 states, “Every will shall be in writing, signed by the testator … and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.” The failure to meet these witnessing requirements means that the will cannot be proved in the Missouri probate court and therefore cannot be admitted. In addition, the will’s provisions will not be enforced by the probate court. It becomes a worthless piece of paper. (Most states either do not recognize or make it very difficult to prove the following wills in probate court: oral, or nuncupative, wills, which typically require witnesses in the presence of the testator to hear the will; and handwritten, or holographic, wills, which have no witnesses acknowledging their execution. These wills are rare and they are outside the scope of this article.)
V. The Meaning of Presence
Exactly what presence means based on varying state statutes and case law in the context of a will signing is important; a protocol is needed to ensure that the will is enforceable and the public health is protected (i.e., keeps all in attendance safe from COVID-19). A primary tenet of statutory interpretation is to first look at the definition of a word. Merriam-Webster defines presence, in its first definition, as “the fact or condition of being present” and goes on to suggest that presence means being in the company of others in the same space or immediate vicinity. During this pandemic, the problem related to witnessing essential legal documents is that while we are sheltering in place, on lockdown, or social distancing to stop the spread of COVID-19, physical presence is not recommended and is even illegal in some states. The Centers for Disease Control and Prevention states that it is safer for Americans not to be in the physical presence of others during the pandemic. The governors in most states have issued executive orders to shelter in place. Yet for people getting their essential legal affairs in order, it is necessary for them to be in the physical presence of others, to wit, in the presence of at least two witnesses in the case of signing their will.
VI. Case Law Demonstrating Varying Views on Presence
Case law on the subject of presence in the context of will signing is worth examining because it gives some insight into the problem of and possible solutions for achieving contact-free — but not presence-free — witnessing during the pandemic. In the cases discussed below, people’s doctors, nurses, friends, and neighbors (i.e., people unfamiliar with the nuances and technicalities of the law) were asked to witness will signings without a lawyer present. Lawyers may need to rely more on such people to help coordinate will signings during the pandemic because lawyers, facility representatives, clients, and/or witnesses concerned about potential risks of exposure may not be present.
During the past 60 years, interesting will-contest cases have been reported out of the courts in Minnesota, Texas, and Georgia involving what it means for a lay witness to be in the presence of the person making the will. Even though states vary in terms of how witness presence is accomplished, case law indicates the best practice center around signing documents before the principal is in a hospital or home setting in critical condition and governments enacting creative and novel solutions in the age of social distancing and personal protection. The following three cases arose in settings in which the person who wanted to make a will was confined to bed and dying.
In 1962, the Minnesota Supreme Court decided the issue of presence in the context of a hospital will signing. The Minnesota statute at the time stated, “Every person of sound mind, not a minor, may dispose of his estate … by his last will in writing, signed by him … and attested and subscribed in his presence by two or more competent witnesses” (emphasis added). Note the similarity between this statute and the Missouri statute discussed above. In this case, a doctor purportedly witnessed a patient’s will by signing it in the hospital hallway, out of the sight and hearing of the patient. The Court found that the doctor was not a witness. The court interpreted presence literally and technically to mean the witness must be in the same physical space within the testator’s sight and hearing. This law was repealed in 1975, but it is an example of how the judiciary can define presence narrowly in a way that could result in the invalidation of a will.
In 1967, the Texas Court of Appeals interpreted presence a bit more broadly. The statutory language was similar to Minnesota’s. Section 59 of Vernon’s Annotated Texas Statutes provided in part, “Every last will and testament … shall be in writing and signed by the testator … and shall, … be attested by two or more credible witnesses … who shall subscribe their names thereto in the presence of the testator (emphasis added).” The Texas court found that “the presence of the testator” means being in the “conscious presence” of the testator, not necessarily in the testator’s actual sight. The witness in this case signed the will at the nurse’s station in the hospital, out of the sight of the testator-patient. However, the court upheld the will because the testator-patient in this case could have been able to see the witness sign the will at the nurse’s station with a slight alteration in his position without assistance.
In 1980, the Georgia Supreme Court decided a case in which the will signing was not in a hospital but in a home — a likely setting for a will signing these days since hospital access by lawyers and witnesses seems unlikely — where the testator was bedridden. Section 113-301 of the Georgia Code provided almost identical language to the other state statutes recited above: “All wills must be attested and subscribed by two or more competent witnesses in the presence of the testator (emphasis added).” Here again, the result was slightly different as to what the presence of witnesses meant. The Georgia court held that the will would have been valid if the bedridden testator could have seen the witness, who signed in the hallway outside the testator’s bedroom, without changing the testator’s position. It was not necessary for the testator to actually have seen the witness sign the will.
These cases demonstrate that presence can mean different things in different states, but generally the statutory language is the same, requiring the testator to sign his or her will in the presence of two witnesses. Of course, the best practice to ensure that the will is enforceable, unlikely to be questioned, and likely to survive a will contest is for the testator to be within the sight and hearing of the two witnesses when they sign the will and vice versa. But in the post-COVID-19 world, clinging to “best practice” may deprive the clients most in need of the opportunity to settle their affairs.
VII. Recommendations and Call to Action
From the case law, it must be concluded that during a will signing, regardless of the venue, the testator should be within the sight and hearing of the witnesses, and vice versa. These days, however, to protect people from COVID-19, social distancing is crucial. This also applies to the notarization of other essential legal documents, including powers of attorney and living trusts, if RON is not a practical option. The person executing a power of attorney or living trust and the notary public must be able to see and hear each other — at a safe distance.
To this end, a protocol should be adopted to allow people to execute essential legal documents while maintaining social distancing to reduce the risk of spreading COVID-19. RON has already proven useful to mortgage lenders and land title offices by allowing mortgage documents and deeds to be notarized remotely in 14 states, as of April 30, 2020. This was allowed before the pandemic and may serve as a model for a remote signing protocol. RON could help people complete beneficiary deeds, leaving land to their children or others without the necessity of going to probate court. If hardware and software issues could be solved to make RON technology more readily available to notaries outside the mortgage lending and land title businesses, RON also could be used by people to sign their trusts and powers of attorney remotely. However, there are still many obstacles to implementing RON, which involve time and funding that make it impractical in many essential document signing situations (e.g., need for certification, special hardware, certain vendors for processing, etc.)
To accomplish remote signing without the presence of another, individuals would need a computer or tablet, a webcam, and the ability to upload their identification and essential legal document to an online notary. The Pew Research Center suggests that the number of older adults who have this capability is growing but its adoption by this population is far from ubiquitous. Perhaps instructions could be produced to teach people in the privacy of their own homes how to implement RON, with safeguards to insure against undue influence or duress from a family member or nursing staff member if the signer resides in a nursing home or similar facility.
In response to future emergencies such as pandemics, state governments could enact remote online witnessing of wills. The Mortgage Bankers Association and the American Land Title Association have been lobbying for RON for years. But there is no will witnessing lobby imploring the governors or state legislatures to change the law and allow remote online witnessing of wills. Because of the time required to change the law, it is probably not going to happen during the course of the COVID-19 pandemic. However, if the United States continues to suffer waves of COVID-19, similar to the course of the 1918 flu pandemic, perhaps the legislatures in each state could consider amendments to their probate laws allowing witnesses and notaries to be remotely present to get essential legal documents put in place without risking further spread of the deadly virus.
VIII. The “Parking Lot Protocol” Solution
A possible solution to the immediate signing dilemma is to use a vehicle in an outside parking lot as the will signing or notarization venue. The authors have created a protocol that might be followed, assuming that the signing individual can drive or be driven to the site in a motor vehicle (see Figure 1); witnesses would be standing upright and outside of a vehicle to interact with the signers from a safe distance. Instructions for a safe signing procedure could be sent to the signer, which in the case of a will would include draft copies of the will to review in anticipation of setting up a will signing. Even if state law does not require it, this procedure mandates that the testator and the witnesses be within each other’s sight and hearing during the entire signing to ensure that the documents will be in full force and effect after they are signed. The procedure would likewise mandate in the case of notarization of a living trust or power of attorney that the notary and the signer be within each other’s sight and hearing during the entire signing. Other solutions may be explored, such as witnessing in an open doorway, through a window in a dwelling, or on a patio or a porch.
Finally, the procedure assumes that all persons involved are able to participate without violating any applicable stay-at-home orders. While legal services are generally exempt from stay-at-home orders because they are designated as essential, these rules can vary; therefore, attorneys should check the rules and guidance applicable to their jurisdictions.
In summary, attorneys need to provide a practical procedure to enable people to get legal documents safely signed without unreasonably risking infecting others. We suggest a legally viable solution without having to lobby state legislatures to change the law in the short term.
In the long run, statutory expansion of RON is needed. RON will help people by enabling them to execute their essential legal documents while protecting their health. More civic pressure and influence from public health and legal associations are needed to accomplish this goal. During the coronavirus pandemic, witnesses, notaries, and lawyers must balance the health and safety of their clients and themselves with the necessity of executing essential legal documents for their clients — weighing a client’s lack of essential legal documents with the risk of exposing him or her to COVID-19. Being able to put one’s affairs in order can be a comfort to people afflicted with the illness.
We urge states without RON laws on the books to consider long-term legislation to enact these laws. We also urge governors to issue emergency executive orders to allow flexibility for RON execution of essential legal documents during the pandemic. Many questions need to be answered. For instance, will hospitals allow an agent or legal representative into the hospital or care facility to witness a signing? Or will only remote communication be allowed? Will health care providers have time to print and present legal documents to patients if their agents cannot enter the hospital or contact them? Perhaps future analysis on cases not yet litigated can be done to answer these questions in the context of the extraordinary COVID-19 pandemic.
Example Protocol for Safe Legal Document Signing
DIRECTIONS FOR TESTATOR:
Before the Signing Date
• Ensure that any questions you have about or corrections you would like to make to the documents drafted for you are addressed before your appointment to formally sign your documents.
On the Signing Date
• Drive to the public parking lot for your appointment. Bring your own ballpoint pen. The notary and witnesses will have their own pens. No pens will be shared.
• Put on nitrile gloves and face masks.
• The notary and witnesses, who also will wear nitrile gloves and face masks, will come outside and stand within your sight and hearing. Stay in your vehicle at all times. The entire time you will be in the presence of the notary and witnesses, who will maintain a 6-foot distance from you. They will be able to see and hear you, and you will be able to see and hear them: This is very important under the law.
• Through your open car window, take the signature pages handed to you, which will be clearly marked where you need to sign. This will occur at arm’s length with a foot-long clipboard. Sign these pages where marked.
• After all the documents are signed, witnessed, and notarized as required by law, the attorney will take the signature pages and the original documents back inside the office and make copies. The attorney will keep one copy of each document in his or her file and mail the original and one copy of each document to you.
INDICATIONS THAT NECESSITATE RESCHEDULING:
On the Day of the Signing
You will need to reschedule if ANYONE who is scheduled to attend the signing is coughing, has a fever of 99.5 degrees F or higher, or has other COVID-19 symptoms.
Within 14 Days Before the Day of the Signing
You will need to reschedule if ANYONE who is scheduled to attend the signing has been suffering from COVID-19, has tested positive for COVID-19, or has been exposed to someone with COVID-19.