[WSBAPT] Witnessing by Web-Cam - COVID-19

[Roger Hawkes]

David: think it through and do the best you can under the circumstances.  Almost certainly the legislature intended ‘presence’ to be physically in proximity and sight of each other.  But if no one challenges the remote witnessing, will a court disapprove it?  If someone does challenge it and the witnesses are available to testify live at that time, will it matter?  If witnesses are not available then, will a judge throw out a will that was done with all the formality available at the time? Maybe.  But what else is the testator gonna do?

Roger Hawkes, WSBA # 5173
Hawkes Law Firm, P.S. and Sky Valley Lawyers, PLLC
Office: 19944 Ballinger Way NE
              Shoreline, WA 98155
                         And
               423 Main, Sultan, WA 98294

               Voice: 206 367 5000
                Fax:    206 367 4005
                www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of David Faber
Sent: Thursday, March 19, 2020 11:06 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Witnessing by Web-Cam - COVID-19

I'm going to try this again, because my email from Monday seemed to have everyone thinking that I was asking about electronic notarization. This email has nothing to do with the electronic notarization law coming into effect on 1 October 2020.

Given COVID-19 and the emergency measures in place, I'm having a lot of clients full-up with anxiety wanting to make sure their documents are in order, and with good reason. Toward the end, and to try to maintain social distancing, I'm trying to explore creative means of witnessing:

(1) Is any reason to think that witnessing a signature by web-camera sufficiently constitutes being "in the presence of the principal" for purposes of a POA (please note that RCW 11.125.050(1) allows a POA to be either notarized or witnessed by two witnesses, and I'm speaking to the latter).

(2) Also, is there any reason to think that witnessing a signature by a Testator on a Will be sufficient for signing a self-proving affidavit?

All of the materials I have suggest that this issue has never been addressed by our legislature and has never been tested in the court (or no test has ever gone far enough to receive a published opinion), but I'm sure it's of a lot of interest to people right now. Any thoughts?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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