Electronic Notaries And Estate Planning In the Time of the Virus
You either know how will signings work because you've done one, or you've been a witness to one, or you have seen one on TV. A bunch of people crowd together in a room, most of the time (but not always) in the lawyer's office. Someone signs their will. A bunch of witnesses sign. A notary signs. The lawyer is there to supervise. That was the system for decades, until somewhere around the middle of March, 2020. Since then, most people have not left their house except for groceries or exercise, and although they feel they need estate planning documents more than ever, the old way of signing just will not work anymore. Even worse, people stuck in a nursing home or a hospital cannot have visitors at all – how can they sign a document that requires witnesses and a notary? Help is finally on the way due to this bill, set to become law on April 15, 2020.
The bill allows anyone authorized to acknowledge signatures (mostly notaries, although attorneys and some other people can also do so) to do so electronically, using what amounts to video technology. It imposes certain obligations on those people so the acknowledgments are done correctly. They have to verify identification, and they have to record the sessions and keep them for ten years. This is of course possible due to videoconferencing technology that many people are using on their computers and smartphones. So now, important legal and financial documents which require the signature of a notary can be executed using electronic means. What about the signature of witnesses?
If it is possible for the witnesses to be in the same room as the person signing the documents, it is a simple matter for the documents to be signed properly, as they would all sign at more or less the same time. If, however, it is impossible to have other witnesses in the room, the caselaw in New Jersey is very unsettled (we do not have many cases about witness signatures in the time of a pandemic). However, cases from the early part of the 20th century through to the 1970s, including a case called In re Politowicz, 304 A. 2d 569, give hints as to how a court might consider proper witnessing of documents. The New Jersey will statute does say that not only must the testator (of a will, for example) sign in the presence of the witnesses, but the witnesses have to sign in the “conscious presence” of the testator. Attorneys with mobile technology and some creativity should be able to transport documents such that the videoconferencing technology will be able to capture both sides of that transaction. This area of the law is, admittedly, quite unsettled and will be an interesting topic to watch in the coming months and years.
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