Social Distancing Presents Problems for Trust and Estate Attorneys
By Scott Merrill
New Hampshire trust and estate attorneys are scrambling for solutions to the question of how to execute valid wills while maintaining social distancing requirements. So far, no one has a definitive answer.
Similar questions have been raised in Massachusetts where a letter was drafted last Friday by a law firm raising the question for Governor Charlie Baker whether virtual signings for wills would be made possible.
One ray of hope for a quick solution came yesterday in the form of Governor Sununu’s emergency order eleven which allows for notorizations to be performed for an individual not in the physical presence of the notary officer if:
“The notarial officer can communicate simultaneously by sight and sound through an electronic device at the time of the notorizatrion.”
The problem, according to Attorney Angela Hayden, is that the emergency order applies to notaries and not witnesses.
In New Hampshire witnesses must be in the presence of a testator for valid execution. The term “presence” is defined by In re Estate of Fishcher, 152 N.H. 669 (2005). It states that “witnesses are in the testators presence, ‘whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed.’
The testator need not ‘actually see the witnesses for them to be in his presence.’
“It is sufficient that ‘he has knowledge of their presence, and can, if he is so disposed, readily see them write their names, . . . even if he does not see them do it and could not without some slight physical exertion.’”
Hayden said the emergency order falls short because some do not believe it meets the standard found in In re Fischer.
“It’s easy to fix. E-signing approval and online witnessing,” Hayden said. “But there are several who say that the In re Fischer case stands for the proposition that physical presence is required for witnesses.
Hayden added that some attorneys she is in contact with don’t want to “push the envelope” on this issue.
“I’m sorry, but I don’t agree. We have every reason to push the envelope on this. It’s our duty to get a solution in place pronto. It’s up to us to solve this problem and guide the profession into the modern era where we finally embrace the technology that is available for us to honor the intent and safeguards of the execution requirements in a manner that keeps people safe during this unprecedented time. The easier solution is to get the same virtual option provided to notaries extended to witnesses, as well.”
According to Rebecca McWilliams, an attorney who provides legal contract services and project management consulting services for businesses and individuals, as well Estate and Wealth Planning assistance, one solution to the current problem could be the use of holographic wills. Holographic wills, which have been used by soldiers during wartime, do not require a signature by a witness. The problem with these wills, which are written and signed by testators without witnesses or notaries, is that courts must prove that the signatures are authentic. Another problem: they are currently not accepted under New Hampshire state law.
“Lets go back to law school,” McWilliams said. “This would seem to solve the problem in times like these when people can’t meet indoors.”
McWilliams does acknowledge the potential problems with these types of wills.
Aside from authenticating signatures, is the need to prove that the testator was of sound mind at the time of the signing and whether the will was in fact the final version and not a draft.
Hayden, who has said she has been working on this problem for the past week believes the 2001 Uniform Electronic Transactions Act should be the solution to the problem. Nonetheless, she said, several perspectives appear to be emerging at this moment.
“I could be totally wrong about this but I think lawyers are falling into a few categories,” she said. “There’s the ‘lets use technology side, the nothing to do ‘we need physical presence’ side, and the ‘it’s a slippery slope,’ side. I refuse to accept that as ok right now. It’s not prudent to have people signing in person if we can utilize technology.”
The Uniform Electronic Transactions Act or RSA 294 E-11 requires a signature or record to be notarized, acknowledged, verified, or made under oath. This requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
“There are twenty years of law in terms of how electronic signatures work. Why can’t we do this? I’m not getting anything other than it’s not legal,” Hayden said, explaining that the underlying reason for a notary is to verify who a person says they are. “Witnesses are there so we know that the person is who they say they are, so we know no one is holding a gun to their head. It’s to prevent fraud.”
Even with these safeguards Hayden explained that that there are still contests over wills.
“These rules have been around hundreds of years, people who are going to do bad things are going to do them no matter what,” she said. “I’m hard pressed to say you need to be in a physical place when it presents a serious health problem.”
Some firms are going ahead with in person signings with modified protocols for “essential” signings in place.
Some of the changes at The Janson and Colgan Law Firm include suspending all non-essential signings until further notice but the firm will be offering client appointments between 1:00-4:00pm.
Attorney Robert Wells of Mclane Middleton is calling for caution, both in terms of maintaining a safe environment for his clients, and in the application of electronic signatures.
His firm, he said, is still holding in person signings for wills but said notaries and witnesses are seated at least six feet apart and that the room, as well as writing implements, are disinfected.
“We’re currently looking at other states to see what they are doing and encouraging people to hang in, we’ll get it done,” he said, adding, in response to emergency order 11, “Remote notarization is helpful but it doesn’t account for witnesses.”
Another consideration that Wells brought up is the lack of access to technology for many of his older clients.
“Older folks just may not have the technology,” he said.
David Sturm is another attorney calling for care when seeking solutions for how to execute wills. Regarding electronic will signings he said:
“We could conceivably be opening the door for a less secure system where people are expressing their final wishes. We need to be careful not to make it easier for fraudulence.”
Asked about electronic signatures Strum said he could agree with a temporary order if needed and done in a way that prevents fraud but for now his firm is still seeing clients.
“We did one estate plan here today. We wiped everything down and we did this because that’s what our clients wanted. We were ok, they were ok,” Strum said.
For Attorney Hayden, and others, she believes the time to act on getting an electronic signature approval for validating wills is now.
“It goes back to whether the people are who they say they are and that they are of sound mind, it’s about the chain of custody,” she said, adding, “I’d argue for electronic signatures to the Supreme Court and I’m giving my clients guidance to do it this way.”