Electronic Notarization Insufficient for Execution of Wills

As a result of the COVID-19 pandemic, there has been an increased demand for estate planning documents. Some of these documents involve do-it-yourself plans and, rumor has it, electronic notarization services. The problem is that few people outside of the legal community are aware that electronic notarization is insufficient to establish a will in the Commonwealth of Virginia.

To properly establish a will, Virginia law requires that a testator must be of sound mind and, if the will is not wholly in the testator’s handwriting, that the will be 1) signed by the testator, or someone other person directed by the testator, in a manner intended as a signature and 2) such signature was made in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. Case law has defined that parties to the will must be within the “line of sight” but does not yet expressly include virtual presence.

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To further complicate the issue, there appears to be a gap in our law for “remote notarization” which would allow people to appear virtually, but affix a wet signature by pen. While a Virginia Notary may engage in electronic or traditional notarization services, the real difference involves the tool used to perform the notarial act. Traditional notarization utilizes a pen and a rubber stamp to execute the document, and by law, requires personal appearance before the notary. On the other hand, electronic notarization may be performed virtually, but requires a computer and appropriate software to electronically sign the document.

In 2019, the Uniform Law Commission drafted the Uniform Electronic Wills Act which would permit testators to execute a wholly electronic will. To date, no state has adopted such a law, although four states do have electronic will statues. Virginia does not have an electronic will and as a result, electronic execution would be insufficient to establish a will in Virginia.

While we understand the desire to put documents in place, as a result of this pandemic, we anticipate an increase in litigation associated with do-it-yourself estate planning documents. Such cases may be the result of challenges to the documents themselves as a result of a lack of capacity or undue influence, or due to improper execution. The elder law bar has sought assistance from the Governor and General Assembly; however, our requests for exceptions or emergency orders or legislation during this time have gone unanswered. In the meantime, we remain open and available to assist our clients, and are using CDC recommended guidance and creative methods to oversee execution of documents.

Ask Kit Kat: Tracking a Great White

Hook Law Center:  Kat, what can you tell us about Katharine, a great white shark who inhabited waters around Cape Cod?

Kit Kat: Well, this is interesting. Katharine is no dainty creature. She weighs around 2,300 pounds! She is 14 feet and 2 inches long. She was tagged on August 20, 2013 off Cape Cod by Ocearch, a non-profit group which conducts ocean research around the world. Katharine is named after Katharine Lee Bates, the writer who composed the words for “America the Beautiful.” For a time, her antics and whereabouts were tracked frequently. She even had a Twitter account of 61,000 followers. She would roam East Coast waters as far down as Florida. Then, May 12, 2019 was the last ping which was received from her tracking device. All were wondering what happened to her? Happily, she has re-emerged. Once in March 2020, a faint signal was heard. Then on April 4, 2020, 3 more pings occurred in less than a 24-hour period. She was about 200 miles off the coast of Virginia.

Simon R. Thorrold, a senior scientist at Woods Hole Oceanographic Institution in Falmouth, MA was not surprised that Katharine has re-appeared. Great white sharks can stay under water for months at a time. Her tracker is about the size of iPhone X model, though it is a bit narrower. Attached to her dorsal fin, she must break through water for her to transmit a signal. Gregory B. Skomal, a senior fisheries scientist at the MA Division of Marine Fisheries, hypothesizes mussels and algae may have coated the antenna, thus preventing the antenna from activating.

Katharine is not the only shark who is tracked. Scientists track them and other marine mammals and fish hoping the information they gather will lead to protections of mating and birthing areas and overall protections of species in general. They want the public to be aware of their work. The more the public is involved, the more committed they will be in protecting the ocean’s magnificent wildlife. Mr. Thorrold comments, “The more we can interact with the average Joe in the street, the more they can feel a sense of ownership, a sense of stewardship for the ocean, the better it is for everyone. It’s a way of bringing the ocean life into our homes.” Thanks to Katharine and others, the research continues, and the public is enthralled! Most sharks live for 75 years, so we have a long time to keep hearing from her! (Christopher Mele, “Katharine, the Great White Shark Who Ghosted Her Trackers, Resurfaces,” The New York Times, (Science section) April 13, 2020)

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