Published in NH Bar News (3/17/2021)
Like the New Hampshire Legislature’s enacting House Bill 1249 in July 2020, states across the country are taking steps to permit remote execution of estate planning documents. In some instances, remote notarization and witness attestation are temporary conveniences, but as more drafters utilize these accommodations, the question becomes one of longevity: are these changes here to stay? And if so, the question for this attorney becomes one of risk as, surely, one size does not fit all.
No doubt, it has been interesting to observe how recent efforts to modernize estate planning have been welcomed with open arms, especially as virtual signings and remote notarization catapult Trusts & Estates attorneys into the twenty-first century. Those “tried and true” procedures that estate planners have developed over decades of practice may become relics of a pre-COVID era. This is especially so as some attorneys tout the convenience of remote execution. But, pragmatism dictates that with this new flexibility comes new traps for the unwary.
Despite some accommodations, like remote notarization and witness attestation, permitted by recent (and, in many instances, temporary) executive orders and legislation, the underlying elements of due execution and testamentary capacity must be satisfied to create a valid estate plan. In the coming years, there will undoubtedly be litigation challenging the validity of estate planning documents signed during the pandemic and under extended state of emergency orders on the grounds of execution irregularities, lack of testamentary capacity, and undue influence. Therefore, it is important that drafters are cognizant of statutory execution requirements. See RSA 551:1 (testator must be married or at least 18 years old; testator must be of “sane mind”); RSA 551:2 (will must be in writing; will must be signed by testator or some person at his express direction and in his presence; and will must be signed by two or more “credible” witnesses, at the request of and in the presence of the testator, who can attest to the testator’s signature).
While remote or virtual signings as a convenience are generally fine, when “red flags” are present there needs to be heightened sensitivity. All things being equal, if there are “red flags,” proceed with extra caution. In probate litigation, family dynamics are not only important after the fact, but they are also a key predictor of the possibility of post-death disputes. Our cases repeatedly involve the same scenarios: children of the first marriage contesting the plan favoring the testator’s later spouse (in one case, she was wife #8) or the plan wholly or mostly disinherits a child. In these cases, estate planning counsel, having in mind that she will be an important witness when the plan is challenged, needs to be extra vigilant if considering a remote signing or some other abbreviated execution conference.
For all signing events, it is important that counsel document testamentary capacity. Such practice is even more vital when “red flags” are present. The same is also true when it comes to attorneys who elect to take advantage of these new “options” (i.e., virtual signings): be prepared to “paper the file,” possibly more than usual. In other words, document that you have confirmed capacity, such as the questions (preferably, non-leading) posed to and answers provided by the testator/settlor. On the day of signing, did mom have all of the elements of capacity: did she know who her family was? That her spouse predeceased her? The nature and scope of her wealth? The dispositional scheme of the plan?
Because of the novelty of remote and virtual execution, one response may be an increased reliance on video-recorded signings. Be mindful that such recordings are saved for posterity—good, bad, or indifferent. Your client may seem “totally with it,” but years later, the video may not “look as good” as you thought it did at the time it was taken. For example, maybe you did not realize that you asked leading questions or that during your interview the testator mixed up the names of her children. Also, remember that, not only must recorded signings satisfy the requirements of due execution, but they must also comply with recording consent laws. New Hampshire, for example, is a “two-party” or “all-party” state, meaning that everyone who is party to a conversation must agree to the recording.
In a similar vein, is a named beneficiary in the room with the testator during the remote signing? While virtual conferences are convenient, you need to be sure that someone out of view of the camera is not “running the show” or otherwise unduly influencing the execution of these documents.
There are other practical concerns with remote signings. New Hampshire’s recent legislation provides that an attesting witness will be treated as if they were in the physical presence of the testator if the witness can communicate simultaneously with the testator, the other witness(es) and notary by sight and sound through an electronic devise or process (e.g., Zoom, Skype, Microsoft Teams). What if there is an issue with internet connection (yours, the testator’s, the witnesses’)? Let’s say you are in the process of explaining the dispositional scheme when you “freeze;” you do not realize it and the testator is not paying enough attention to notice, so even though you thought you had explained the documents sufficiently, the testator missed a key part of your discussion. As with pre-COVID signings, how do you make sure everyone has the same version of the document when it comes time to sign or attest? Of course, additional complications crop up when more than one estate planning instrument is being executed during the same conference.
Yes, this is all new ground, and no one has all the answers; but, it is important to take a step back and ask whether this should be the “new normal”. Regardless, it is imperative that drafters take extra precautions when it comes to virtual signings. Similarly, remain vigilant and be mindful of “red flags”. You will be doing your client and your future self a great service.