By Jeffrey S. Dible
Nursing home lockdowns, home quarantine conditions or other personal mobility problems during the COVID-19 pandemic made it either extremely difficult or impossible for some competent Hoosiers to sign valid wills, because Indiana law has long required the testator and the two attesting witnesses to sign the will in each other’s direct physical presence. Beginning on March 31, 2020, the Indiana Supreme Court’s emergency orders offered only a short-term solution.
House Enrolled Act 1255 (P.L. 185-2021) enacted a more “permanent” solution by adding new signing methods for wills, effective April 29, with no “sunset” date and no dependence on any current or future public health emergency. The new signing methods are optional: If a competent testator can sign a paper or electronic will in the direct physical presence of two witnesses, the law and the procedures remain unchanged.
If a testator with capacity can meet and interact in person with the two attesting witnesses in the same physical space, it will be easier and less expensive for the testator and their attorney to accomplish the will execution and witnessing using traditional “direct presence” interaction between the testator and the witnesses.
New definition of ‘presence’
HEA 1255 added detailed, broader definitions of “observe,” “presence” and “in the presence of” to the probate code for both traditional wills signed on paper (Indiana Code § 29-1-1-3(a)(15), (16), (26) and (27)) and electronic wills (I.C. 29-1-21-3(14)-(17)). On and after April 29, the “presence” requirement will be satisfied if the testator and the witnesses can interact in real time either within the same physical space or using any type of two-way technology that permits visual and auditory contact. For example, the “presence” requirement would be satisfied if the testator and witnesses talk on telephones from both sides of a glass window or use a real-time audiovisual technology like FaceTime, Zoom or Microsoft Teams.
When ‘virtual presence’ and ‘remote witnessing’ can be used
The following fact patterns illustrate when to use the new will signing and witnessing methods. With any signing method, a competent testator can direct another adult (not either of the witnesses) to make the testator’s signature on the electronic or paper will in the testator’s direct physical presence.
(1) Testator T and the witnesses are in separate rooms within the same building. T and the witnesses can see and hear each other in real time using a glass window or two-way video. T signs the paper will first, and the paper original is carried to the separate location where the witnesses sign, with T watching. I.C. 29-1-5-3(b).
(2) Testator T and the witnesses must remain physically separated, but T and the witnesses can use an electronic signing method. T and the witnesses use two-way A/V technology throughout the signing process, and under the supervision of an attorney or paralegal, T and each witness add their digital or electronic signatures to the electronic record for the will, using their own devices. I.C. 29-1-21-4(b) through (d).
(3) Testator T and the witnesses must remain physically separated, and T doesn’t have access to or cannot use an electronic signing method. T and the witnesses use two-way video throughout the signing process, and under the supervision of an attorney or paralegal, T and the witnesses review identical paper “counterparts” of the will and add their “wet ink” signatures to their separate counterparts, which are combined into a composite document containing all signatures within five business days after the signing. I.C. 29-1-5-3(e).
During the 2021 legislative session, a compromise was made to move House Bill 1255. When “remote witnessing” with virtual presence is used for an electronic will or when a traditional will is signed on paper by the testator and witnesses in separate “counterparts” that are combined later, a licensed attorney or a paralegal who works under the direct supervision of a licensed attorney (a “directed paralegal”) must supervise the signing process and must complete an affidavit of compliance. See I.C. 29-1-1-3(a)(9), 29-1-5-3(c) and (d), and 29-1-21- 4(b) and (c). This affidavit must be filed either when the will is filed for probate or at any time ordered by the probate court. I.C. 29-1-5-3(e) and 29-1-21-4(d).
If a testator and two witnesses sign a will on a do-it-yourself basis using remote witnessing or signing in counterparts but without the supervision or participation of a licensed attorney or a directed paralegal, the will remains voidable in the probate court’s discretion, or upon the filing of a timely objection to probate (under I.C. § 29-1-7-16) or a timely will contest (under I.C. § 29-1-7-17). If a DIY will is correctly signed without an attorney’s or directed paralegal’s involvement and if the will’s substantive contents are not controversial to any interested person, that will could be admitted to probate.
Saving provisions for wills signed in 2020 under emergency orders
During the pandemic’s public health emergency, Indiana’s Supreme Court issued an emergency order in Case No. 20S-MS-237 on March 31, 2020, permitting the signing of wills and codicils with remote witnessing subject to conditions, including a requirement that the will be “re-ratified or re-executed in compliance with regular statutory witness procedures within 90 days after the health emergency expires.” Extended several times, this emergency order expired on July 1, 2021. See Case No. 20S-CB-123.
HEA 1255 makes it unnecessary for the testator to re-execute or re-ratify a will signed on paper or electronically and using remote witnessing or “virtual presence” if the will was signed and witnessed before Jan. 1, and using either the methods permitted under the Supreme Court’s emergency orders or any of the signing methods permitted under HEA 1255 effective April 29. See I.C. §§ 29-1-5-3.3 and 29-1-21-4.1. A gap remains for wills signed with remote witnessing after Jan. 1 and before the April 29 effective date of HEA 1255. The testator who has signed such a will and still has capacity has two choices: re-execute the will with direct-presence witnessing under the Supreme Court’s emergency orders, or sign a new will on or after April 29 using any of the HEA 1255 methods.
Signing durable POAs with two witnesses instead of notarization
Pre-2021, Indiana law required any durable power of attorney to be signed by the principal in the “presence” of a notary public. During the pandemic, some competent adults were unable to meet in person with a notary or to find a notary with authority to perform “remote online notarizations.” HEA 1255 addressed these issues by permitting a competent principal to sign a durable POA in the presence of two disinterested witnesses instead of with a notarized acknowledgement, and by allowing the use of two-way A/V technology to satisfy a broader “presence” standard for POAs signed electronically or on paper. The specifics of these changes are outside the scope of this article but are effective on and after March 31, 2020.•
• Jeffrey S. Dible is counsel with the law firm of Frost Brown Todd LLC. In 2020, he chaired the ISBA subcommittee that drafted the will and POA signing provisions in House Enrolled Act 1255. Opinions expressed are those of the author.