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A critical and current topic to all estate planners is what will become of the temporary measures enacted to facilitate will signing during the COVID-19 pandemic. The emergency will execution measures made it easier to sign wills during the pandemic. One such leniency was the relaxation of the traditional physical presence requirement for witnesses. However, these special measures will soon sunset in virtually all jurisdictions. The authors suggest that more analysis should be conducted before decisions are made about possibly extending them. They conclude “that any permanent change to the law should be driven by empirical data about will-making practices both before and during the pandemic.” Some of the factors to be considered include:
- Who availed themselves of emergency measures permitting remote witnessing of wills?
- Why and how did they remotely sign?
- What types of problems, if any, have arisen with wills executed and remotely witnessed during the pandemic?
Specifically, one of the steps recommended is surveying practicing attorneys as to their experience with remotely signed wills, which can’t be complete because contest of such documents may not arise until the testator dies, which could be years from now.
The discussion is based on both laws and experiences in the United States and Australia. Although the laws between the two countries are quite different in terms of disposition of assets, there are sufficient similarities for the authors to glean some insight into the impact that the more lenient pandemic emergency will signing measures may have had on challenges to those documents. The authors observe that considering holographic wills and the harmless error doctrine in the United States, and informal wills in Australia, the law appears to be trending away from traditional wills formalities toward more lenient signing formalities. That might suggest that continuing to enact electronic will legislation, and making permanent some of the emergency measures that permit witnessing wills using simultaneous platforms like Zoom, FaceTime or Skype, may be beneficial.
Some of the considerations as to which emergency measures might warrant making permanent include:
- Remote execution and other leniencies may increase the opportunity for people to make wills. This might argue in favor of making permanent the temporary rules adopted for will executions during the pandemic.
- Enhancing access to and promoting valid will making is desirable to promote the cost effective and efficient facilitation of post-mortem property transfers.
- Whether instruments signed remotely are more likely than traditional wills to be challenged or invalidated on the basis of undue influence, fraud or lack of testamentary capacity.
- Whether remote witnesses themselves feel able to adequately ascertain that the testator was of sound mind and not acting under any undue influence.
But not every expert views this trend as beneficial. Other commentators have examined the remote witnessing provisions of the Uniform Electronic Wills Act (2019) and concluded that the provisions lack appropriate safeguards against fraud or undue influence. Some have expressed concern that remote or electronic witnessing may make it difficult to assess the testator’s capacity. However, the formalities of execution only apply to wills while, for many, the vast majority of wealth will be disposed of at death by much less formal means (such as a beneficiary designation or a mere “itf” (in trust for) designation in opening a bank account).
Another consideration is evaluating the efficacy of traditional will signing formalities. These include the requirement that a will must be in writing and signed by the testator (or signed at the testator’s direction). The testator must also sign their signature in the presence of two witnesses. But there are differences as to whether the witnesses must be physically present together with each other. The authors suggest that will formalities don’t necessarily serve their stated purpose. However, they do note that protecting vulnerable testators against undue influence and/or elder abuse might nonetheless caution in favor of retaining the traditional requirement of having two independent witnesses to a will.
Under current Queensland law, a court can dispense with the formal requirements if the testator intended the document to serve as a will. The definition of a “document” is very broad and could include sounds, images, writings or messages that are capable of being produced or reproduced. Thus, a note on an iPhone, an unsent text message and a video recording on a DVD were deemed to be “documents” for this purpose. While the United States doesn’t recognize the concept of an “informal will,” 11 states have harmless error statues.
The authors observed: “Based on anecdotal experience, however, it seems likely that any purported will executed with anything other than traditional formalities is more likely to lead to litigation because of questions about authenticity.” But as they concluded, analysis is advisable to gather data as to the reality of this. It’s interesting to note that the specific concern isn’t with using an electronic record (as opposed to paper copy). Rather, the concern is whether remote witnessing suffices to assess capacity and identify undue influence.