Wisconsin Supreme Court Denies Petition for Remote Witnessing Procedures

June 12, 2020 by Atty. Stefanie Trinkl

The COVID-19 pandemic has drastically affected the way businesses and services interact with the public. On March 12, 2020, Governor Evers declared a public health emergency as a result of the COVID-19 pandemic. Ten days later, on March 24, the Wisconsin Secretary of Health issued a “safer-at-home” order under Executive Order 12. The order excluded essential businesses, including law firms, from the safer-at-home requirements with the expectation that social contact be limited as much as possible.  

In compliance with social distancing recommendations, and for the safety of staff and clients, estate and elder law firms have implemented numerous changes to their firm's operations such as limiting time spent in the office and increasing cleaning protocols. However, social distancing guidelines and the safer-at-home order create an issue for the execution of testamentary documents such as wills, trusts, and powers of attorney which not only require wet signatures but the presence of witnesses and notaries. Specifically, the Wisconsin statutes pertaining to these documents, Wis. Stat. 853.03(2), Wis. Stat. 155.10(1)(c), and Wis. Stat. 154.03(1), require that they be executed in the “conscious presence” or “presence” of the witnesses. Wisconsin statute 851.035 defines “conscious presence” as “within the range of any of a person's senses.” In light of today’s technology, whether that range includes what a person can perceive through video or audio is unclear.

Necessity is the mother of the invention, and firms across the state and country have come up with creative methods for executing documents. Many firms have implemented curbside or drive-through signings where clients stay in their vehicle and documents are passed back and forth through the car window while witnesses watch on. While this method works, it still creates an issue for clients who are home-bound or under lock-down in care facilities. It also still creates a risk of transmitting the COVID-19 virus between participants, and for an elderly client population that is especially vulnerable to the effects of COVID-19, this concern is especially valid. 

On April 28, 2020, The Wisconsin State Bar Real Property, Probate, and Trust Law Section filed an emergency petition with the Wisconsin Supreme Court for a temporary order that would allow for the remote witnessing and notarizing of testamentary documents. The Petition relied on the Court’s duty to “promote the efficient and effective operation of the state’s judicial system” and asked the Court to provide interpretive guidance on the issue of remote witnessing for wills, codicils, powers of attorney for health care, and declarations to health care professionals.

The petition proposed that the emergency order would expire 60 days from the last day of the public health emergency under Executive Order #72 and would allow remote witnessing under certain requirements. As part of those requirements, the principal and witnesses would need to attest to being physically located in Wisconsin, positively identify each other if they know one another, or have the principal display his or her photo ID to the camera if they did not. The order would have also required that the audio-video technology being used for the singing have real-time two-way communication capabilities and that copies of the documents be signed with wet signatures and then compiled together. 

The Wisconsin Supreme Court replied on May 4, 2020 with a brief denial of the petition.  In it, the court states that “after careful consideration, the court has concluded that even with the safeguards proposed by the petitioner, deciding whether the statutes allow remote witnessing is a complicated task, better undertaken in the context of a case or controversy than in an emergency request for temporary guidance.” While the court did not share any further reasoning, the outcome no doubt had a mixed reception among estate planners. The denial of the petition means that aging clients will need to weigh the risk to their health against  the goal of accomplishing their estate planning.  For the elderly population, this can be a truly difficult choice, and one that may be difficult to physically accomplish at all. 

Yet at the same time,  remote witnessing and notarization creates its own risk to the client and the attorney. On one hand, we strive to fulfil the wishes and rights of our clients accurately and timely. On the other, we have a duty to protect our clients from undue influence and coercion. While the petition of the Real Property, Probate, and Trust Law Section included procedures aimed at ensuring the legitimacy of document execution, some attorneys rightly worry about what may be happening off screen that could influence a client to sign documents, such as other individuals in the room who may have an interest in the client’s estate.

Without further guidance from the court, we as estate planners are left with the traditional in-person approach to document signings. Whether we continue to meet clients curbside or begin introducing clients back into our office space, it is clear we will continue to be in uncharted waters for some time.

To view the court’s full response to the petition, please visit https://www.wicourts.gov/news/docs/emergencyestateplanning.pdf.