The recent pandemic has made the issue of signing documents, especially executing a will, more difficult due to the social distancing requirements and personal safety concerns. Law firms, as well as other businesses, have been forced to rethink many procedures that relate to document signing.
Many types of estate planning documents can be signed remotely with the use of online notaries. This is typically conducted via a web call where the notary compares state issued identification to the person signing and watches as the signature is completed. The documents are then scanned and emailed.
However, this process is more problematic with executing wills. In Maryland, a will must be signed by the person making the will in the presence of two credible witnesses. The person making the will is called the testator. The testator must be at least 18 years old and have legal capacity, meaning they understand the purpose of the document they are signing.
In addition, the witnesses to the will execution are required to sign an attestation clause. An attestation clause states that the witnesses signed the will in the testator’s presence. The witnesses should also be at least 18 years old and not named as beneficiaries in the will. The problem is that an attestation clause cannot be conducted remotely and abide by the statutory requirement of being in the testator’s presence.
This issue has become unchartered legal territory because Governor Hogan authorized remote witnessing on April 10, 2020 as a response to a public health emergency. This order suspends the requirements for in person witnesses for wills, powers of attorney and advance directives.
Some clients are concerned whether a will signed and witnessed remotely in accordance with Governor Hogan’s order will later withstand any contests or other litigation. We cannot say for certain how this will later play out in Maryland’s Orphan courts. Until the first will is contested based on the issue of remote witnessing and a decision is rendered, we can only use the protection provided by the Governor’s order.
If you have concerns over social distancing and safety, yet want to execute a will or other estate planning documents right away, call our office to discuss the issue further. At Stouffer Legal, we will work to find a solution to ensure your safety without compromising the validity of your documents.