March 25, 2020

5 Tips to Help Elder Law Practitioners in the Age of COVID-19

By Rajiv Nagaich
The elder law community responds as people shelter in place

The elder law community responds as people shelter in place

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol 41, Issue 5)

In the midst of the coronavirus pandemic, many people who had not created basic estate plans such as wills, powers of attorney, and advance directives are now desperately seeking to set up these documents. As officials currently demand social distancing and sheltering in place to stem the spread of the virus,  in-person signings of estate planning documents have become 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 our Washington State firm felt that we must  help people have the ability to nominate surrogates to protect them from  facing an uncertain future in these perilous times.

Researching and viewing this as a civil rights issue, we at Life Point Law believe current Washington State law does authorize the a solution -- one that many elder law attorneys have used in the past. I thought it was appropriate to share this in case you were thinking along the same lines in helping people who need us at this time.  Here is the solution we 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 WILLS ยง 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 relevance  to the current crisis, federal courts have specifically recognized safety concerns that 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 redo their documents in accordance with standard formalities. If a client passed during the crisis and the will is 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 safety parameters that are in force now and likely in the near future. 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 aiding those who need help at this critical time. It is how  we can do our part in this national crisis.  People should be able to look to the elder law community for answers to this very vexing issue. 

Rajiv Nagaich is an elder law attorney in the Seattle area and a fellow of the National Academy of Elder Law Attorneys.