Trusts & Estates Insider

The COVID-19 global pandemic has brought about significant changes to the way law is practiced. With the Courts closed or conducting limited in-person proceedings, the use of virtual conferences and appearances became more prevalent. In the area of Trust and Estates (“T&E”), temporary legislation has allowed for the virtual witnessing of estate planning documents during the continuation of the pandemic, which was previously not allowed. With the pandemic hopefully winding down, the following questions arise for T&E practitioners and their clients: i) Is virtual witnessing here to stay?, and ii) If so, what are the benefits and risks that remote signings have on estate planning scenarios?

Background

In early March 2020 with the country on edge and New York City bracing for a lock down, the ceremonial meeting to sign and witness estate planning documents was in jeopardy as many were afraid to leave their homes. T&E attorneys were concerned with the difficulties that would arise with in-person execution ceremonies.

In April 2020, Governor Cuomo issued an Executive Order that authorized the witnessing of certain documents such as wills, health care proxies and trust agreements to be performed via audio-visual technology. While ordinarily a physical presence is required when witnessing these legal documents, the Executive Order expanded the definition of “presence” to include “virtual presence.” However, the Executive Order did not give 100% clear guidance for the requirements of a virtual witnessing. The usage of the words “shall” and “may” left T&E practitioners confused as to whether a directive in the Order was mandatory or optional. Looking beyond the pandemic, the current question for T&E practitioners is whether the permanent allowance for virtual witnessing will enhance their practice or introduce new problems with regard to the validation of testamentary documents.

The Benefits to Remote Signings

The obvious benefits to a remote signing is that it has opened up a world of opportunities for clients and their families in addition to the profession as a whole. Clients are able to sign their estate planning documents in the comfort of their own homes, facilitating the completion of estate documents for a broader population by diminishing the logistical issues and delays often presented by in person meetings, particularly for aging and less mobile clients. From a practical standpoint for attorneys, attorneys would be able to forgo their formal office conference room meetings and exchange them with their home offices for virtual signings.

The Risks Associated with Remote Signings

Even with all the benefits of a virtual signing, T&E practitioners should be careful what they wish for. Assuming there is revised and clear guidance for the requirements of a virtual witnessing, if it does become commonplace, litigation will inevitably follow. The ability to examine and observe a testator’s capacity and competency face-to-face might not be easily duplicated in a virtual setting. The issue of undue influence may also come into play as the supervising attorney does not have the benefit of knowing who is in the background or who might be in the next room when a testator is signing. When a client makes the effort to come to their attorney’s office, the attorney has a better perspective to observe their independence (or lack thereof) and make a determination if there are any concerns.

For attorneys, routine procedures will need to be adjusted if virtual witnessing is here to stay. The traditional practice safeguards in the in-person signing process are more controllable and observable when a client signs in the presence of counsel. If remote witnessing is allowed post-pandemic, it will ultimately be a risk-benefit analysis as to how to proceed. Does the ease of virtual signing encourage more clients to get their estate planning in order? The answer is likely yes. Should clients and their attorneys opting for the ease of virtual execution be mindful of possible risks in foregoing traditional execution procedures? The answer should also be in the affirmative. Certainly, if the virtual execution procedures are left in place, counsel should consider, on a case by case basis, whether particular situations are best served by virtual execution.

Conclusion

As the pandemic is hopefully slowing down and as New York City is preparing for a “major reopening,” the emergency relief granted by Governor Cuomo allowing for remote witnessing will inevitably expire. It will then be a waiting game to see if the legislature amends the law to allow for virtual witnessing post-pandemic or if it will be business as usual for T&E practitioners. Stay tuned!

For more information on the topic discussed, contact:

• Benjamin J. Frenkel  |  frenkel@thsh.com  |  212-508-6783