The recent pandemic has caused changes to our lives in multiple ways, some only for the short term hopefully, but surely some aspects of our lives will change for the long term. For instance, in the short term, grocery shopping has become a major inconvenience, and for some, it is a minor inconvenience not knowing when your next haircut is going to be. In the long term, employment patterns will be altered greatly as social distancing and work from home might become the norm. For many people, the execution of testamentary documents (i.e., a will or a revocable trust) during these times of social distancing has become a very immediate and practical concern.

Some clients already were in the process of preparing new, or amending existing, estate planning documents when the pandemic began spreading rapidly and the many resulting lockdown and shelter-in-place orders were issued by local and state governments. Other clients have been calling with an urgent desire to get documents prepared and signed quickly, either for a sick family member (whether or not infected by the coronavirus) or for themselves even though they are not currently sick. But the practicalities of quarantines, isolations, social distancing, and travel restrictions have made the traditional signing ceremony a logistical challenge.

Traditionally, you would have many people together in a conference room for a signing ceremony: the client, and often the client’s spouse, two witnesses, a notary, and the lawyer who drafted the documents, so usually a minimum of six people. If you are willing to forego the certainty provided by a self-proving affidavit, you could eliminate the notary and hope that no one challenges the will’s execution during probate, which would require an affidavit or testimony from the witnesses to prove the valid execution of the will. Further, Florida law recently has allowed for remote online notarization procedures, so if you do use a notary for the self-proving affidavit, the notary does not have to be present in the same room with the testatrix and the witnesses. And starting July 1, Florida law allows for electronic wills where the testatrix and the witnesses can appear remotely and each sign counterparts, which are validated independently by the remote notary if you chose to also include the self-proving affidavit. Accordingly, the notary can be eliminated from the room if you choose to forego the self-proving affidavit, and perhaps the lawyer, but until July 1 you still need three people together in each other’s physical presence between the signer and the two witnesses. Even if we used the boardroom, big enough for 18 people, to keep everyone at an acceptable distance, we must consider whether it is safe for the clients and witnesses to travel to the office and potentially be exposed in public places. Further, we must consider that viruses can survive on paper, and could be transmitted through handling the documents as they are passed around from the signer to the witnesses and back to the client. Hopefully, everyone will use his or her own pen and eliminate having to pass one around.

But what if the signer is infected and must be isolated? Assuming there are no issues with the signer’s capacity, how can the witnesses be in the same room safely with the signer? Would courts accept the witnesses being behind a secure, see-through partition in the signer’s room or just outside the room, or perhaps outside the signer’s window? The ability to complete electronic wills starting July 1 should eliminate the need for in-person signing ceremonies through videoconferencing services such as Skype, WhatsApp, or Zoom. Accordingly, until the statutory changes allowing for remote witnessing become effective on July 1, lawyers must take great care during these challenging times when helping clients execute testamentary documents safely, and in accordance with current Florida law requiring that at least the signer and two witnesses be in the same room together.