Executing a Last Will and Testament During a Pandemic

Traditionally, a valid will must be:

(1) in writing;

(2) signed by the testator (or in the testator's name by another at the testator's request and in the testator's conscious presence); and

(3) either (A) signed by two individuals each of whom witnessed the signing of the will or the testator's acknowledgment of the testator's signature, or (B) acknowledged before a notary public.  So says Uniform Probate Code § 2-502. 

In states that have not adopted the UPC, holographic wills may or may not be allowed. In four states--Nevada, Indiana, Arizona, and Florida--electronic wills are permitted--but not necessarily with remote witnessing (such as by webcam). The recently-approved Uniform Electronic Wills Act leaves it to the adopting state to decide whether a witness's "electronic presence" will suffice for the purpose of witnessing a will.

In a jurisdiction like New York that does not permit holographic wills (except in the rarest of circumstances) and does not allow notarized wills, how is a person supposed to execute a valid will in an era of social distancing? I suppose the testator could meet up with friends in a city park, all the while maintaining appropriate six-foot distance, and then conduct a traditional will ceremony.

Here's another idea, which probably only works for people who live in houses or in apartments with windows viewable from another apartment or from the sidewalk:

• The testator arranges with the neighbors that the testator will go to the neighbor's yard;
• Two neighbors come to a window, or a front door with a glass pane.
• The testator gets close to the window, holds up the will, and signs it while the neighbors are watching;
• The testator says, "This is my will. I have read it and understood it. It disposes my property in accordance with my wishes. I would like you to sign your names as witnesses."
• The testator pushes the will through the mail slot or slips the will under the door.
• The two neighbors retrieve the will from the mail slot.
• The two neighbors go back to the door or window. While the witnesses watch each other and while the testator is watching, each witness signs as a witness.
• The witnesses push the will back out to the testator through the mail slot or under the door.

I think it works. The ceremony is unusual, but it should meet either the "line of sight" test or the "conscious presence" test for witnesses. H/T Ellen Aprill.  Am I missing anything?

To make it easier for people to execute wills during this pandemic, Governor Cuomo should issue an emergency order allowing remote witnessing of wills. Remote notarization is temporarily allowed in New York. The inability to update a will a real problem that can be fixed relatively easily. To be sure, this pandemic likely will push many states to adopt electronic wills statutes with remote witnessing, once legislatures are back in session. In the meantime, remote witnessing should be permitted.

 

Comments

[Kent Schenkel]

Clever post Bridget. Maybe I'll include a problem like this on my (remotely given) final exam!

[MacK]

My recollection is that a testator can, as an alternative to signing in the witnesses presence, acknowledge to the witness that the signature on the document is their authentic signature "that's my signature" and the witness can then authenticate the signature.

[Adam J. Hirsch]

For a discussion of the law and policy of electronic wills, see my new article, Adam J. Hirsch, "Technology Adrift: In Search of a Role for Electronic Wills, 61 Boston College Law Review 827 (2020), which is available on SSRN.

[Anon]

Perhaps add: everyone should wear nitrile gloves (if available) and wash hands after given the virus can be on surfaces, including paper? Social distancing is only as effective it’s weakest link. And the Will itself is that link.