Posted by: Newman Bankston on Apr 23, 2020

Journal Issue Date: May 2020

Journal Name: Vol. 56. No. 5

As we all adjust our practices and look for ways to act responsibly to protect our communities, one significant hurdle we all face is how best to interact with clients while honoring stay-at-home orders. While emails, telephone and videoconferencing make it relatively easy to continue to communicate with most clients remotely, the execution of some legal documents requiring either a notary or a witness must be done in-person.¹

To explore these issues, the Tennessee Bar Association assembled a Remote Notary Task Force comprised of members from multiple sections to hear from lawyers across the state about how they are dealing with notary and witness requirements. The Task Force heard from several lawyers who were successfully using remote notary services pursuant to the recently enacted Tennessee Online Notary Public Act2 (RON) and many others who were in the process of registering for RON capabilities. Other lawyers have begun using “drive-by” signings where clients execute documents without leaving their cars. And others have begun using documents that don’t technically require a notary or witnesses such as pour-over holographic Wills3 into Revocable Trusts. Despite these helpful tools, there were still in-person or physical presence requirements that couldn’t be avoided. The TBA Task Force ultimately circulated a memorandum to the Governor’s Office, the Attorney General’s Office, and Chief Justice Bivins’s Office detailing its findings and encouraged further action to ease these in-person or “presence” requirements. 

On April 9, 2020, Gov. Lee signed Executive Order 264 (EO) authorizing the use of videoconferencing technology such as “Skype, FaceTime, Zoom, WebEx, and other similar communication technologies” to facilitate the notarizing and/or witnessing of a “Document,” which includes “an instrument, trust, will, living will, durable health care power of attorney, durable power of attorney, deed, or other legal document.” The Order applies to any “Signatory” defined as “a person or persons who execute or sign … a Document,” and a “Witness(es),” which includes “a person or persons who acknowledge, attest, or otherwise witness … the execution or signing of a Document by a Signatory, and/or… persons who witness an act performed by another Witness(es).” 

The purpose of the EO is to “permit the remote notarization and remote witnessing of Documents to allow persons to engage in commerce and execute legal documents without the need for in-person contact” and the provisions should be “liberally construed to effectuate this purpose.” The EO suspends until 12:01 a.m., Central Daylight Time, on May 18, 2020, any law requiring a “Signatory to execute a Document in the physical presence of, or while physically appearing before, a notary public or Witness … to the extent necessary to permit remote notarization and remote witnessing under the following conditions,” which are summarized below.  

  1. Must be in real-time audio and video. The witnessing of a signature by a notary or attesting witness must occur “via real-time audio and visual communication” where the parties can “see and hear one another simultaneously.”     
  2.  Must be physically located in Tennessee. All parties signing a Document must be physically located in Tennessee during the videoconference. 
  3.  Must verify the identity of signatory. The notary public and Witness(es) must “verify the identity of the Signatory, by personal knowledge or by government-issued identification at the time that execution occurs.” 
  4. Must identify the document. The “Signatory and Witness(es) … must affirmatively identify on the real-time audio and visual communication the Document being executed and witnessed, as applicable.” 
  5. Must be able to observe the signatory sign. The “execution and witnessing … must be captured sufficiently close on the real-time audio and visual communication for the notary public and Witness(es) … to observe.” 
  6. Must acknowledge in writing the execution pursuant to the Executive Order. The Document must include a provision stating that “it was executed in compliance with Executive Order No. 26 by Tennessee Governor Bill Lee, dated April 9, 2020.” 
  7. Must be properly memorialized. The “execution, witnessing, or notarizing of a Document … must be memorialized by at least one of the following methods”:

a. Counterparts. “Persons who execute, witness, or notarize a Document… while in different locations from one another execute, witness, or notarize separate signature pages in counterparts;” or 

b. Subsequent notarization or witnessing of original Document within 10 days. Once the Document(s) is executed as provided above, “then the applicable notary public and/or witness(es) subsequently notarizes or witnesses the original Document executed by the Signatory … not later than ten calendar days from the date of the execution of the Document”; the notarizing and witnessing shall be “deemed to be carried out at the time of the execution.”

The EO is a welcome relief to most in the legal community, but is not without its concerns and pitfalls. Many are concerned that the EO goes beyond the scope of the governor’s authority under the emergency management powers and, absent legislative intervention, Documents executed pursuant to the EO could be subject to litigation. Furthermore, the conditions set forth in the EO must be carefully followed. 

The supervising attorney should consider creating a checklist for the remote execution of Documents to ensure compliance. The administrator of the videoconference, preferably the supervising attorney, should take detailed notes on the time, date and location of all parties (including non-signing parties) to the videoconference. Also, beware of videoconferencing services that do not simultaneously project all participants at all times and make sure that all signature pages clearly state that, “This document was executed in compliance with Executive Order No. 26 by Tennessee Governor Bill Lee, dated April 9, 2020.” 

Finally, the EO should be used aggressively to protect the parties, but not hastily. If a client is making a significant change in his or her estate plan or is acting out of character, practitioners should consider delaying the execution until an in-person meeting can be held. Although videoconferencing may not be ideal, we should use it responsibly to help our clients during this great time of need.  

NEWMAN BANKSTON is a shareholder with the law firm of Egerton, McAfee, Armistead & Davis PC in Knoxville and practices in the areas of Estate Planning, Probate and Tax-Exempt Organizations. He graduated from the University of Tennessee College of Law in 2004. He is the immediate past chair of the Executive Council for the TBA Estate Planning and Probate Section and is a member of the Tennessee Probate Study Group. 


NOTES

1. See Tenn. Code Ann. 32-1-104(2) which requires that witnesses to a Will sign “in the presence of the testator and in the presence of each other.”

2. Tenn. Code Ann. 8-16-301 et seq.

3. See example of a holographic will at https://www.tba.org/docDownload/1582378.

4. See the order at https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee26.pdf.