Wisconsinites and their attorneys now have a new legal process for remote notarization and witnessing of estate planning documents. The new law, 2023 Wisconsin Act 130, took effect March 23, 2024.

While the new law provides greater flexibility for estate planning clients and their attorneys in the post-pandemic world, it causes additional dilemmas for attorneys, particularly those who represent the elderly and individuals with disabilities.

Attorneys should be cautious to incorporate remote notarization and witnessing of estate planning documents into their practices. They must ascertain in each situation whether the client’s circumstances and abilities are a good fit for remote notarization and witnessing.

Relevant Statutes

The Act:

• amends Wis. Stat. section 153.30(8)(2)d;

• repeals and recreates Wis. Stat. section 244.05; and

• creates Wis. Stat. sections 140.147, 154.03(1)(e), 154.03(3), 154.30(8m), 155.10(3), and 853.03(2)(c).

An Overview of the Law

2023 Wisconsin Act 130 allows an individual (defined under the Act as a remotely located individual) to execute estate planning documents remotely via the use of two-way, real-time audiovideo communication if the individual, witnesses, and notaries public are all present in Wisconsin at the time of signing and appear remotely under the supervision of an attorney licensed in the State of Wisconsin.

The supervising attorney must be able to confirm all the following:

• The remotely located individual is physically located in Wisconsin during two-way, audiovisual communication.

• The witnesses and notaries public are physically located in Wisconsin during the two-way, audiovisual communication.

• The identities of the remotely located individuals, the witnesses, and the notary public. If the lawyer does not have personal knowledge of the parties to the communication, they must verify their identities by means otherwise provided by law (such as the presentation of a valid Wisconsin driver’s license or identification).

• The names of other persons physically present in the same location as the remotely located individual at the time of the remote signing and/or notarization. The Act mandates that the supervising attorney request the remotely located individual to perform a sweep of the room and location of the remote signing whenever possible, so the supervising attorney can confirm the presence of other persons.

• The remotely located individual displays the estate planning documents to be signed, including the total number of pages of the documents and the page number on which the remotely located individual’s signature will be affixed. Remotely located individuals must also declare that they are aged 18 or older, that the document to be signed is the remotely located individual’s estate planning document, and that they are signing the document voluntarily.

• The remotely located individual, or another individual age 18 or older at the direction of the remotely located individual, signs the estate planning document in a matter visible to the witnesses and/or notary public.

• The audiovisual communication allows the remotely located individual to meaningfully participate in the signing; specifically, it provides communication to see, hear, and engage in an interactive way with others in real time by electronic means. The supervising attorney can make exceptions to this requirement for those individuals with sensory impairments who can participate with the use of other adaptive devices or learned skills that are an appropriate substitute audio or visual communication.

• The remotely located individual executes the estate planning documents pursuant to the Act.

• The witnesses and notary public sign and notarize the estate planning documents as provided under the Act; and within a reasonable time (undefined) after the signing and performance of the notarial act, the documents are personally delivered or transmitted by mail to the supervising attorney.

• The supervising attorney completes and attaches to the estate planning document a sworn statement of compliance as provided by the Act, according to the specifications of the Act.

The law also provides that a witness for a declaration to health care professionals must be 18 years of age or older. Previously, Wis. Stat. section 154.02(1) did not exclude minors as witnesses.

What Qualifies as an Estate-planning Document?

The new Act defines estate-planning documents to mean:

• a Will or Codicil;

• a Declaration of Trust or other document creating a Trust;

• an Amendment to a Declaration of Trust or another document creating a Trust;

• a Certification of Trust;

• a Power of Attorney for Finances and Property;

• a Power of Attorney for Health Care;

• a Marital Property Agreement or an Amendment to a Marital Property Agreement;

• an Instrument evidencing a nonprobate transfer;

• a Declaration to Health Care Professionals;

• an Authorization for Final Disposition;

• a HIPAA release;

• an Instrument of Disclaimer; and

• an Instrument exercising a Power of Appointment.

The Good: Comfort, Potential Cost Savings, and Efficiency

The new law promotes timely execution of estate planning documents at the venue of a client’s choosing. Clients, especially those who live in rural areas, will save time and money by being able to execute their documents in their home or at a nearby location.

Clients with limited mobility or other health issues could also benefit. Most elderly clients with cognitive impairments comprehend best when in their home environments. Meetings at or close to the client’s home make it easier for the client to stay on track with their meals, medication, sleep, and therapy schedules.

Those with compromised immune systems are not risking illness by multiple contacts in office centers.

Finally, remote signings are ideal for clients with agoraphobia and sensory processing disorders who desire control of their environments and limited stimulation.

There are potential benefits for law firms too. Remote signings will maximize efficiency for lawyers and staff with less travel resulting in more time to devote to other client cases.

The Bad: Technology and Accommodation Struggles, Helpers with Conflicts of Interest, and Difficulty Controlling the Client’s Environment

The use of remote notarization and witnessing has disadvantages, too. Clients who struggle with technology or who do not have easy access to reliable internet will not be good candidates for remote signings. If the client’s proposed remote signing situation sounds too good to be true, it is prudent for the lawyer or the lawyer’s staff to ask questions of the client beforehand and consider a trial run.

And what about accommodation for sensory impairments? How can lawyers be sure that the client is meaningfully participating? At a minimum, the supervising attorneys should inquire about sensory impairments before the remote signing and notarization meeting and discuss accommodations with the client.

Recently, I had a client with hearing loss request a meeting via Zoom. The client stated that she was comfortable with using Zoom captioning features. However, when our meeting time came, the captioning was too slow for us to have an engaging and informative conversation.

Also, we all can attest to online disruptions, such as long pauses, freezing of the screen, and dropped communications, causing endless hassles, and rescheduling of meetings. So much for efficiency and ease, right?

While some clients can rely on technology aid from family members, friends, or caregivers, those “helpers” may have significant conflicts of interests. During in person meetings, the supervising attorney can remove those persons once the meeting begins.

Because the lawyer is less able to control the client’s physical environment in the remote location, it will be exceedingly difficult to determine who is in the room and whether the client is signing the prepared estate planning documents. An initial sweep of the room by the client’s computer or tablet may not effectively detect the presence of others in the room. Continual interruptions may happen, particularly if the person with a personal conflict or stake is relied upon to help with the client with access and accommodation. Cameras also do not easily show whether clients may be reading from their own notes or from a script prepared by a family member who is taking advantage of the client.

Attorneys should be leery of clients who wish to sign their estate planning documents in congregate living situations due to privacy issues. Facility staff should not be relied upon to assist clients with remote audiovisual communication.

The Ugly: Difficulty in Assessing Client Capacity and Possible Undue Influence, Forgery, and Premature Death

The role of witnesses to the signing of estate planning documents, particularly Last Wills and Testaments and Codicils, inevitability includes an assessment of the client’s capacity to sign the documents in question and that they are signing free of undue influence.

Will remote signings diminish the witnesses’ ability to fully observe the clients, their responses, mannerisms, and appearance?

If witnesses are called to testify in a probate contest, how can they determine with certainty whether a third party was not present during a remote signing meeting? A witness’s line of sight is only limited to what they can see from the camera – this means that it is quite possible that a third party could still exert influence over a client.

The limitations of camera views will also increase the likelihood of fraud and forgery. I have always struggled to read documents presented by clients and other attorneys on camera via Zoom. In a recent “test” meeting with my 19-year-old son, I could not easily identify the pile of documents in front of him. I also was not able to confirm that the document he was signing was the document he was supposed to sign.

Finally, what happens if the client dies after signing the estate planning documents, but before the supervising attorney, witnesses, and notary sign and complete the other requirements of the Act? Will this new law create more legal challenges?

Conclusion: Not Appropriate for All

Remote signing and notarization, while helpful in some situations, will not be appropriate for all clients.

The lawyers must weigh the pros and cons in each situation, considering the client’s capacity, accessibility to reliable communication devices and internet, needed sensory impairment accommodations, and the risk of influence from others with known and unknown conflicts of interests.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.