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

Thu Mar 19 16:34:33 PDT 2020

Below is the section from Reutlinger's Washington Law of Wills and Intestate Succession (WSBA 3d ed. 2018) regarding "in the testator's presence." For what it's worth-I think this addresses attestation only. It will not work for purposes of getting notarization on a self-proving affidavit. Notarization is a whole different set of rules.

As to executing a POA using witnesses-the POA statute parrots the language of the will execution statute, so I would bet it would be interpreted the same way. But it's a Uniform Act, so you might check interpretations in other states that have enacted the same statute.

Were I to try witnessing remotely, I might imagine (a) recording the video and preserving it, if at all possible; (b) going through an elaborate ritual of showing in close-up (so it's readable) to all video-conferenced persons each and every page of the document before it is signed; keep it in sight of the camera while delivering it to the signer and the signer is visible to the camera while signing, then again bringing the document to close-up and showing each and every page of the document after it is signed.

The chief problem is that there's only one document, so if it's with the signer, now what? How can the remote witnesses sign it in the signer's presence? The document would have to be physically delivered to each witness so that they can sign. Would the witnesses and the signer have to stay in video contact the entire time (assuming that is what counts as "presence")? Or can there be a break? I don't think counterparts would be allowed in this circumstance, though I have never researched that issue.

>From Reutlinger:

The requirement that the witnesses sign in the testator's "presence" (like the similar requirement in many jurisdictions that the testator sign in the witnesses' presence, or that the witnesses sign in each other's presence) is fraught with uncertainty and has resulted in numerous tests and formulas, from the strict "line of sight" test to the far more flexible "conscious presence" requirement.44<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#footnote6_44> The only case in Washington that has referred to this requirement seems to have adopted a fairly strict test of the witness's being "within the scope of the testator's vision from his actual position."45<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#footnote6_45> In that case, the testator was waiting on the back porch as the witness signed the will two rooms away, with the door between those two rooms closed.46<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#footnote6_46> This would have failed any test of presence, no matter how lenient. There was thus no occasion for the court to discuss such variations that have been developed in other jurisdictions as whether it would suffice if the testator could have seen the witnesses' act if he had

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42<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote6_42>    In re Miller's Estate, 146 Wash. 324<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=146+Wash.+324&fn=Washington%20Law%20of%20Wills>, 326<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=146+Wash.+326#page326&fn=Washington%20Law%20of%20Wills>, 262 P. 646<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=262+P.+646&fn=Washington%20Law%20of%20Wills> (1928).

43<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote6_43>    In re Estate of Price, 73 Wn.App. 745<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=73+Wn.App.+745&fn=Washington%20Law%20of%20Wills>, 871 P.2d 1079<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=871+P.2d+1079&fn=Washington%20Law%20of%20Wills> (1994) (witness signed as notary, but signature had all the necessary elements of attestation and so was valid as such). But cf. In re Estate of Black, 153 Wn.2d 152<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=153+Wn.2d+152&fn=Washington%20Law%20of%20Wills>, 102 P.3d 796<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=102+P.3d+796&fn=Washington%20Law%20of%20Wills> (2004) (notary lacked personal knowledge of the testator's signing and other attributes of an attesting witness, so was deemed to have signed only as a notary and not as a witness). One cannot sign in both capacities. Id. n.10; see also In re Estate of Knowles, 135 Wn.App. 351<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=135+Wn.App.+351&fn=Washington%20Law%20of%20Wills>, 361<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=135+Wn.App.+361#page361&fn=Washington%20Law%20of%20Wills>-62<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=135+Wn.App.+362#page362&fn=Washington%20Law%20of%20Wills>, 143 P.3d 864<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=143+P.3d+864&fn=Washington%20Law%20of%20Wills> (2006).

44<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote6_44>    See generally Thomas E. Atkinson, Handbook of the Law of Wills §72 (2d ed. 1953); 2 Jeffrey A. Schoenblum, Page on the Law of Wills §§19.119-19.128 (2003 & Supp. 2016). Under this test it is required only that the testator be aware of the witnesses signing through any one of the testator's senses, whether sight or hearing or just a "general consciousness" that the act is taking place.

45<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote6_45>    In re Jones'Estate, 101 Wash. 128<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=101+Wash.+128&fn=Washington%20Law%20of%20Wills>, 132<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=101+Wash.+132#page132&fn=Washington%20Law%20of%20Wills>, 172 P. 206<http://links.casemakerlegal.com/books/Case_Law/results?ci=14&search%5bCite%5d=172+P.+206&fn=Washington%20Law%20of%20Wills> (1918). Although numerous non-Washington authorities were cited, the court in Jones's Estate declined to elaborate on the requirement, because it was only one of many grounds for invalidating the will.

46<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote6_46>    Id. at 130.

[Page 39]

bothered to look, if he had changed position slightly, if he had been aware of the act through his other senses, and so on.47<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#footnote7_47> Unless and until these issues arise in Washington, therefore, it is unclear which of the various views on "presence" our courts are likely to accept. At present it is safest to assume they will follow a strict line of sight test. It is likely, however, that should the issue arise in the future, the court will apply a more modern, flexible approach to presence and will not be bound by the strict, mechanical approach that the present limited authority appears to imply.48<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#footnote7_48>

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47<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote7_47>    See authorities cited in note 44.

48<https://washington.casemakerlibra.com/home/libra_2.aspx?login=jeff@sayrelawoffices.com&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=7018&p=8018#reffootnote7_48>    The conscious presence test is clearly the modern approach (see, e.g., Unif. Prob. Code §2-502(a)(2) (2010)), and given the general trend toward liberalizing execution requirements, it is very likely the one that the court would choose.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Note - Attorneys and Staff Working Remotely Due to COVID-19

As we face the quickly changing circumstances presented by COVID-19, our firm wants to update you as to the steps that we are taking at Sayre Law Offices.  Our top priority is the health and safety of our employees, clients, colleagues and friends, and all of their families and communities.

In order to slow the spread of the COVID-19 virus while still serving our clients, our attorneys are working remotely.  During this time, our attorneys are able to make and receive telephone calls; access all of our documents and servers; and access emails and voicemails.  Our Seattle and Vashon offices remain open with limited staffing to maintain critical functions, and to route phone calls, mail, and deliveries.  Our Olympia office is closed.  Attorney/client meetings will be handled by teleconference where able, and signatures for estate planning or real estate transactions/closings will be handled on a case-by-case basis.  Many of the local courts have postponed trials and hearings, or are moving them to telephonic proceedings only.  We are keeping up to date on those court closures and changes, and will advise each client, accordingly.

We will continue to monitor the situation and recommendations from the CDC and state and local health departments and will respond accordingly.  Be assured that we will continue to advise and support our clients throughout this health emergency.

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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