[WSBAPT] COVID-19 - Witnessing by Webcam?

Tue Mar 24 13:50:57 PDT 2020

Here’s some info from the Other list:

Call to Action to the Elder Law Community: How to Provide the Urgent Help Our Community Requires in a Time of Social-Distancing

Dear Colleagues:

In midst of the Coronavirus pandemic crisis, many Washingtonians who procrastinated and did not establish legal documents, now are desperately seeking a way to set up basic estate plans: wills, powers of attorney, and advance directives. But public health currently demands social distancing thus rendering in-person signings of estate planning documents a profound and often prohibitive safety issue, especially for older adults.

Having had more than a few calls from individuals in this situation I felt that as a member of the legal community we needed to be able to address this issue.  All attorneys at the firm felt that we have to be able to help people have the ability to nominate surrogates and not have to go into an uncertain future without that protection.

Researching the issue and looking at it from the point of view of it being a civil rights issue, we at Life Point Law believe current Washington law does authorize the solution – one that many of us elder law attorneys have used in the past.  I thought it appropriate to share this with each of you just in case you are thinking along the same lines – helping people who need our help at this time.  Here is the solution we have implemented in our firm:

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 (Wn. App. 2018).

Does RCW 11.12.020 potentially permit a client to direct her lawyer and witnesses via video-conference to sign and attest her will?
If so, community members could remain safely at home while we address their urgent estate planning needs. Though it would make a case of first impression and is the product of exigent circumstances, the answer is likely yes. 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., CrR 3.4(d)(1) Presence of Defendant, Video Conference Proceedings, Authorization ("Such [video conference] 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]). 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.

Of particular import to the current crisis, federal courts have specifically recognized safety concerns may render video conferencing an appropriate means to ensure "presence." 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.

How to Implement Video-Conference Will Signing and Attestation

At a minimum, you should take the following steps:

  1.  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)
  2.  Witness affidavits in conformance with RCW 11.20.020(2)
  3.  Ensure testator presents official identification, e.g., driver's license or passport
  4.  Video and audio should be of sufficient quality to ensure participants are easily seen and understood
  5.  Video-conference recorded and preserved
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.

I hope you will join us in helping out those who need help at this critical time.  It is what we can do to do our part in this national crisis.  I will be sharing this message on our radio show and social media messages that people should be able to look to the Elder Law community for answers to this very vexing issue, seemingly with no real answer.
Thank you for your work on behalf of vulnerable individuals.  AgeOn!!!

Rajiv Nagaich
Attorney and Counselor-at-Law

Ph: 253.838.3454
Ph: 1.877.353.3747
Fax: 253.838.9268
Email: rnagaich at lifepointlaw.com<mailto:rnagaich at lifepointlaw.com>

Christie L. Martin | Martin & Richards, PLLC
Attorney at Law

B: 503-444-3449
C: 503-545-9199
F: 360-637-0300

From: <wsbapt-bounces at lists.wsbarppt.com> on behalf of Kira Rubel <kira at theharborlawgroup.com>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Date: Friday, March 20, 2020 at 3:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] COVID-19 - Witnessing by Webcam?

Hello, team.

I'm so interested in this thread as I have numerous clients that would rather not meet to sign.   Here's my analysis on this, and I am hopeful this will trigger someone to remember a case or other law to support this.

On the DPOA, why can't a webcam notary service be used? I'm basing this analysis on RCW 11.125.060 which states that a DPOA executed other than in this state is valid in WA if it complies with the laws of that other jurisdiction. Arguably, a notary whose state law allows virtual notary complies with his/her own state in performing the act and that should make the DPOA valid.   Likewise, RCW 11.12.20 states that wills are valid in WA so long as they comply with state's law where executed. The language is as follows:

"PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state."

At the very least, it may be a temporary bandaid and then you could have the clients re-sign documents after all this is over.  Or maybe I'm nuts. Admittedly it is a bit of a stretch. However, I do know other practitioners (in CA for example, which has similar language to WA) who are implementing this strategy. In any case, I'd love to hear feedback from our more experienced practitioners on this topic!

Thank you in advance for weighing in.

Kira M. Rubel

*Licensed in CA and WA

The Harbor Law Group (formerly, Law Office of Kira M. Rubel)

3615 Harborview Drive NW, Suite C (on the dock)

Gig Harbor, WA 98332-2129

Tel.  (253) 251-2955 | (800) 836-6531

Fax. (206) 238-1694

Zoom ID. (253) 251-2977

www.theharborlawgroup.com<http://www.theharborlawgroup.com>

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On Mon, Mar 16, 2020 at 11:25 AM David Faber <david at faberfeinson.com<mailto:david at faberfeinson.com>> wrote:
Hi Roger,

You are correct that notarization is not possible by webcam at this point in time. My question was about witnessing and whether a webcam would sufficiently constitute being "in the presence of the principal" for a POA under RCW. 11.125.050 as the alternative to notarization authorized therein.

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

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***

On Mon, Mar 16, 2020 at 11:14 AM Roger Hawkes <Roger at law-hawks.com<mailto:Roger at law-hawks.com>> wrote:
I believe that notarization has to be in the physical presence of the signer; I think that should also be changed by legislation to allow electronic viewing of the signing.

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of David Faber
Sent: Monday, March 16, 2020 10:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] COVID-19 - Witnessing by Webcam?

As we face lockdown due to COVID-19 (and doubly so because our client base is more likely to be in a vulnerable population), I'm exploring how much can be done using technological solutions. Specifically:

(1) Pursuant to RCW 11.125.050(1), would witnessing a POA signing by webcam sufficiently constitute being "in the presence of the principal"?

(2) Similarly, would witnessing a signature on a Will be sufficient for signing a self-proving affidavit?

Seems to me the answer to (2) is slightly closer to an easy "yes" than (1) given all the leniency to the witnessing requirements that exist, but I'm in the dark here and wondering if anyone has any specific knowledge or experience that could prove helpful and instructive at this point in time. I would surmise this entire list would greatly appreciate this knowledge and practice advice while we try to navigate this unprecedented health crisis.

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

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
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