The COVID-19 pandemic has caused a surge in the number of Americans using online services to make wills. If people are subject to shelter-in-place orders, however, the witnessing condition required by statutory law is not readily satisfied—the testator and two witnesses cannot occupy the same physical place at the same time. While some states have temporarily allowed remote witnessing, such relief has not been uniformly implemented across the country. Thus, an instrument prepared online may fail to fulfill a decedent’s intent for property distribution at death in certain jurisdictions because of an execution flaw that makes it ineligible for probate.
For testamentary-minded individuals who remain subject to strict witnessing requirements, web-conferencing platforms like Skype or Zoom could be used to execute wills during mandatory isolation. A testator could sign a will while the testator and two witnesses occupy the same electronic meeting space. The process could proceed as follows: After the witnesses see the testator sign the instrument, the testator transfers the document to witness #1 for a signature, witness #1 signs and transfers the instrument to witness #2, and witness #2 signs and transfers the document back to the testator. The testator then displays the instrument to the witnesses, all attest to their signatures, all while the session is being recorded for future reference.
Remote execution ceremonies do not unambiguously comply with statutory execution requirements, but curative doctrines may be applied to remedy execution deficiencies. Applying substantial compliance with its focus on the purposes of formalities, remote witnesses could establish that a testator signed an instrument memorializing her intent (evidentiary function) and that the instrument had the form of a will (channeling function). By communicating with the testator, remote witnesses could provide evidence that the testator understood the importance of the ceremony (ritual function) and voluntarily executed the instrument (protective function). Because substantial compliance validates instruments where faulty executions nevertheless serve the purposes of formality, remotely executed instruments may become valid wills that allocate property pursuant to a testator’s intent.
Similarly, remote witnessing satisfies the harmless error standard’s requirement of clear and convincing evidence that a decedent intended an instrument to be her will. Remote witnesses gather evidence of an individual’s intent by talking to and observing the testator during the ceremony. At the conclusion of the transfers, a testator could display the final document, acknowledge it to be her will, and each party could acknowledge the signatures on the paper. Because a remote execution ceremony permits all parties to occupy the same e-space synchronously and continuously, remote witnesses have sufficient opportunity to provide clear and convincing evidence that a decedent intended the witnessed instrument to be a will.
Despite their differences, the substantial compliance and harmless error doctrines both excuse an execution error that might invalidate an instrument that represents an individual’s testamentary intent. By applying either of those doctrines during a period of mandatory physical separation, a remotely witnessed instrument may become a will that memorializes an isolated individual’s plan to distribute property at death—and effectuating a decedent’s intent regarding property distribution is the fundamental goal of the law of wills.
Alberto B. Lopez is a Professor of Law at University of Alabama School of Law. An Essay on this topic entitled Zoom Wills will appear this fall in the Washington University Law Review—Commentaries.