The pandemic has been difficult for all of us, and we are all eager for life to return to normal. For many of us, this public health crisis has affected our lives and businesses in ways we never would have thought possible only six or seven months ago.
Estate Planning attorneys (lawyers who draft Wills, Trusts, Health Care Directives, and Durable Powers of Attorney for finances) are no exception. Estate Planning is often a very personal matter. It is the subject of private meetings with clients, and signing ceremonies where documents are executed according to traditional formalities.
One “traditional formality” in the world of Estate Planning relates to the execution of a person’s Last Will and Testament (their “Will”). A person’s Will needs to be: (1) In writing, (2) signed by the person making the Will (the “Testator”) or by someone else at the Testator’s direction, and (3) signed by two witnesses within a reasonable time of witnessing the Testator’s signature.
In many situations we can easily comply with those Will execution requirements, even during a pandemic. We can meet with clients outside for signing ceremonies; we can keep indoor meetings short, hold them in large conference rooms, wear makes, observe social distancing, and have clients bring their own pens; we can even suggest that spouses and adult children can act as witnesses if the clients would prefer not to leave home (in Minnesota, witnesses are not required to be “disinterested,” although having disinterested third parties act as witnesses to a Will is still considered a best practice).
Unfortunately, though, there are some situations where obtaining two witnesses is not possible.
Witnesses are required to be “present” when a Will is signed or acknowledged by the Testator. A witness being “present” to a Will signing has been interpreted by Minnesota Courts to require the witness being within the physical sight and hearing of the Testator.
The requirement of “presence” in our current law allows for a witness to be “just outside the room” where the Testator signs or acknowledges a Will (in a situation where the witness could poke their head in through an open door, for example).
Consider though that many people suffering from COVID-19 that are in isolation within hospitals and long-term-care facilities. In certain circumstances, only one person may be allowed in the room with the Testator at a given time. It could also be that health care professionals may be prohibited from acting as witnesses. So, although people may have access to the Testator, those people might not be allowed to witness the signing of the Testator’s Will.
The Minnesota State Bar Association (the “MSBA”) Probate and Trust Law Section Council, and the MSBA Probate and Trust Law Section Legislative Committee, are sensitive to these challenges of witnessing Wills during the Pandemic, and the Probate and Trust Section has been advancing the adoption of two new laws meant to make it easier for people to execute their Wills in the midst of our current public health crisis.
The first new law is the “Harmless Error Rule.” The Harmless Error Rule allows for a person to execute a valid Will even if they cannot strictly comply with the requirements for Will execution. This allows for a Will to be witnessed by just one witness, rather than two, in situations where there is clear and convincing evidence of the intent to execute a Will and the inability to strictly comply with the normal execution requirements.
The Harmless Error Rule was passed in connection with other legislation responding to the COVID-19 pandemic, and it is currently scheduled to “expire” in February of 2021. The MSBA Probate and Trust Law Section is now working to make the Harmless Error Rule a permanent addition to Minnesota’s Probate Code.
The second new law, or–rather–set of laws, being advanced by the MSBA Probate and Trust Law Section is related to the execution of “Electronic Wills.” We don’t have Electronic Wills laws on the books, yet, but we hope to within the next year.
The Electronic Wills legislation we are currently working on allows for three additional methods of Will signing: (1) Signing a paper Will and allowing witnesses to act by means of remote audio-visual communication (a Testator and witnesses all printing signature pages and signing them separately during a video chat); (2) creating an electronic document that the Testator and the witnesses can all sign together in the same place on an electronic device with their fingers or a stylus on a touchscreen; and (3) creating an electronic document that the Testator and the witnesses can all sign using their own, individual remote electronic devices with the witnessing again being done by means of remote audio-visual communication.
The idea here is that if a person is in quarantine, and needs to sign their Will, they can do so by having a health care professional hold up a device that allows for video chat, without the witnesses needing to be in the same physical location as the Testator.
Currently, Arizona, Florida, Indiana, Nevada and Utah have adopted Electronic Wills statutes. Presumably, more States will follow suit, but regardless: Consider the number of Minnesotans who spend part of the year in Arizona, Florida, or Nevada. Many part-time Minnesotans may already have Electronic Wills that are valid under the laws of those States.
It is also good to keep in mind that many estate planning documents do not require witnesses. Trusts do not require witnesses or a Notary in order to be valid. Health Care Directives and Powers of Attorney for finances may be signed in front of a Notary, alone.
For documents needing just a Notary, the Minnesota Statutes allow for both Remote Notarization (a Notary Public watching a pen-on-paper signature by way of video conference technology) and for Electronic Notarization (affixing electronic signatures to documents that are never printed out on paper, but signed and notarized only in electronic form).
In any event, this is not a time for attorneys to stick their heads in the sand. We recognize that people want to communicate remotely, now more than ever, and we are working hard to update the law to help people accomplish their estate planning goals as safely as possible.
(J. Steve Nys is the reporter for the MSBA’s joint sub-committee working on the adoption of Electronic Wills legislation for Minnesota, and the Chair of the Technology and Innovation Committee of the MSBA’s Probate and Trust Law Section Council.)