In midst of the Coronavirus pandemic crisis, the people of the state of Washington are desperately seeking our help to set up basic estate plans: wills, powers of attorney, and advance directives. On March 23, 2020, Washington Governor Jay Inslee, pursuant to emergency powers granted under RCW 43.06.220, issued Proclamation 20-25 Stay Home – Stay Healthy Order rendering in-person signings of estate planning documents a profound and often prohibitive safety issue, especially for older adults.
It is up to us, the legal community, to help in this time of crisis and we believe current Washington law authorizes a solution that would enable community members to remain safely at home while we address their urgent estate planning needs.
1. Does RCW 11.12.020 permit a client to direct via video-conference her lawyer and witnesses to sign and attest her will?
Though it would make a case of first impression and is the product of exigent circumstances, the answer is likely yes. RCW 11.12.020 (Requisites of wills—Foreign wills) provides that a person other than, and in lieu of, the testator may sign testator’s will so long as that person acts: (1) “under testator’s direction” and (2) “in the testator’s presence.” RCW 11.12.020(1) (“Every will shall be in writing signed by the testator or by some other person under the testator’s direction in the testator’s presence[.]” [Emphasis added]). Similarly, witnesses may attest to the will via compliant affidavit signed “in the presence of the testator and at the testator’s direction or request.” Id.
The statutory purpose of these minimal formality requirements is “to ensure that the testator has a definite and complete intention to dispose of his or her property and to prevent, as far as possible, fraud, perjury, mistake and the chance of one instrument being substituted for another.” In re Estate of Malloy, 134 Wn.2d 316, 322-23 (1998) (citing PAGE ON W ILLS § 19.4, at 66.); see also In re Estate of Meeks, 421 P.3d 963, 968 (Wn. App. 2018).
2. Video-conference satisfies statutory “presence” requirement
The key issue is whether a video-conference meets the statutory requirement for the signer of the will to be “in the testator’s presence.” In other words, does “presence” extend beyond physical proximity to include the virtual?
In other contexts, Washington authorities permit video-conferencing as means to satisfy “presence” requirements. See, e.g., WA CrR 3.4(d)(1) Presence of Defendant, Video Conference Proceedings, Authorization (“Such proceedings shall be deemed held in open court and in the defendant’s presence for the purposes of any statute, court rule or policy.” [Emphasis added]); see also RCW 23B.07.080(3) Shareholder participation by means of communication equipment (“Participation in a meeting in accordance with this section constitutes presence in person at that meeting.” [emphasis added]). With appropriate procedural safeguards, third-party video-conference signing is consonant with the statutory purpose of RCW 11.12.020 to ensure testator has a definite and complete intention. In re Estate of Malloy, 134 Wn.2d at 322-23 (statutory purpose).
Of particular import to the current crisis, federal courts have specifically recognized safety concerns may render video conferencing an appropriate means to ensure “presence.” See, e.g., United States v. Baker, 45 F.3d 837, 847 (4th Cir. 1995) (holding that videoconferencing constitutes sufficient “presence” where “safety concerns inherent in transporting a potential mentally unstable person…are substantially alleviated by the use of the video conferencing procedure.”); see also Fed. R. Crim. P. 43(b)(2).
Practically speaking, we believe this is the best exigent solution for the present crisis. Once the pandemic passes, clients should come in and re-do their documents in accord with standard formalities. If a client passed during the crisis and the will were subsequently challenged on these grounds, we are optimistic a court would uphold it given the safety considerations driving it.
3. Procedural Safeguards to Implement Video-Conference Will Signing and Attestation
At a minimum, practitioners should take the following steps:
- Signature block in conformance with RCW 11.12.030
RCW 11.12.030 requires: “Every person who shall sign the testator’s or testatrix’s name to any will by his or her direction shall subscribe his or her own name to such will and state that he or she subscribed the testator’s name at his or her request[.]” (Emphasis added)
- Witness affidavits in conformance with RCW 11.20.020(2)
- Ensure testator presents official identification, e.g., driver’s license or passport
- Video and audio should be of sufficient quality to ensure participants are easily seen and understood
- Video-conference recorded and preserved
- Signature block in conformance with RCW 11.12.030
In these extraordinary times, the legal community is uniquely positioned to address and alleviate the anxiety of community members about the future. We must act boldly to serve our community in creative ways within the unprecedented safety parameters now and in the near future likely to be in force. We urge everyone to embrace video-conference will signing and attestation as the best exigent solution for the present crisis.
Rajiv Nagaich and Scott Schill
Life Point Law
11711 SE 8th St., Ste. 205
Bellevue, WA 98005