03/29/2020
HOME REMEDIES:
During the Coronavirus outbreak, I’ve had a number of friends, family, and clients ask me about things they can do at home regarding their Will that I might call a “stop gap” measure. The conversation usually goes something like this: “I know I should have done this a long time ago, so when this is all over, I am definitely going to go see a lawyer and get this done right, but in the meantime, I [did something informally] to at least have something and leave some directions, God forbid anything happens.”
The question is, what was the “something informally” you did, and will it work?
Don’ts (i.e., this will NOT suffice under New Jersey law; they will not accomplish you wishes):
• “…so I sent an email to my Mother with details about who should take care of the kids if something happens to us.”
• “…so I texted my Brother a list of who gets what and who should have custody of the children.”
• “….so I typed up a Word document and printed it out and signed it for now.”
• “…so I created a PDF on my computer and then used DocuSign to electronically sign it and then I emailed it to the person who is the executor.”
• “…so I recorded a video of myself going over my wishes and then I saved it and sent it to my accountant. It felt like the movies!”
Do’s (under New Jersey law):
1. Using an old-fashioned pen and paper, write out your wishes in your own handwriting. Try to include both your wishes and the identity of the person in charge of seeing to it that they happen (a.k.a. the Executor or Personal Representative). Sign and date the finished writing. You can look at examples of language online, or, better yet, consult with me or another qualified attorney via telephone or video conference. Transmit a copy to your attorney, accountant, or trusted friend or family member.
2. Create a document on your computer and then print it out, gather two other people (it’s okay for them to be people in your family and even people who are named in the Will) who are over 18, and sign it in front of them. Then, have both of them sign it as well, as Witnesses. Transmit a copy to your attorney, accountant, or trusted friend or family member. Note that for this strategy to work, one of the Witnesses will need to survive you.
3. Conduct more formal estate planning with me or another qualified attorney via telephone or video conference call. Once completed, the documents can be formally executed at a distance of more than 6 feet, including “drive-by” signings or signings conducted through a glass door. If you are not comfortable with that, they can be signed as in 2) above, and then re-executed in-person after the virus quarantine is over.
“Oh wow! Really? A developer can electronically DocuSign a contract to buy a $50 million dollar building but I can’t do that for my little old Will?”
That is correct, and there is important reason why. To successfully challenge (or defend a challenge) regarding the validity of an executed legal document, courts require evidence, one way or the other. When the validity of most legal documents is questioned (“Is this a fraudulent signature?”; “Was this person “with it” when they signed this?”; “Was the person who signed this under duress or being unduly influenced to sign it?”), the vast majority of the time, there is a star witness whose testimony can kind of settle those questions: the signer themselves. Additionally, it is much more likely that the challenge to the document will be fairly recent history, because most legal documents take the form of contracts, and most contracts have a relatively short duration (months or a few years). However, when a Will is challenged, it is invariably challenged after the death of the signer. Often, 10, 20, or even 30 or more years has passed since the Will was executed. As a result, the ex*****on requirements are much more stringent for a Will.
There are movements afoot to liberalize or modernize the ex*****on requirements of Wills. This includes the concept of “electronic wills.” A very small number of states have authorized electronic wills, with fairly varied requirements. More immediately, some states (including New York) have adopted temporary rules specifically for the Coronavirus situation allowing a notary to witness the ex*****on of the Will via video conference and then physically notarize the document later. However, although the New Jersey Assembly passed an emergency law of this type, it specifically exempted Wills, and as of the date of this post, it has not passed the Senate nor been signed by the Governor.
