Thursday, August 27, 2020
Due to the focus on social distancing and quarantining in the wake of COVID-19, essential legal documents that need to be witnessed and notarized in the physical presence of others have not been able to be executed. State and federal governments have largely ignored this issue as they have shifted their focus to controlling and preventing the spread of the virus.
One major issue here is that individuals aged 60 and older are considered to be a high-risk group and many of those in that group may not have a will prepared. So, the individuals that are in this high-risk group are not able to effectively execute a will at a time when it is crucial to have one written.
Wills are not the only essential legal documents that require another person to witness and/or notarize. Living wills (advanced health care directives) and power of attorneys often need to have a witness or notary of sound mind as well. Each state has its own protocol for these legal documents, so the requirements will differ from state-to-state.
Historically, relevant case law opinions differ in what the exact meaning of presence is in the context of a will signing. State and federal governments can use this case law to develop a cause of action that allows individuals to produce wills that are enforceable while also keeping safety in mind.
There have already been steps taken to allow virtual and remote signings of wills. This a step in the right direction.
See Erika Katherine Johnson, MPH, PhD, & Prudence Fink Johnson, JD, LLM., The Need for No-Contact Signing and Notarization of Essential Legal Documents in the Covid-19 World, NAELA News Journal, May 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.