There’s an old Latin maxim: silent leges inter arma. Basically, this means: the laws are silent during war. In many ways, crisis times squeeze out normal legal proceedings, and the COVID-19 pandemic has presented the world with something like a war. Much that was legally normal has been suppressed in favor of public health, which requires social distancing in order to reduce the speed and number of infections.
For most people, the most obvious effects of the social distancing mandates are seen in the closures of workplaces, restaurants, and stores, as well as in the suspension of all athletic and entertainment venues. They might not be affected by less visible consequences, such as the suspension of key components of the legal system. The civil courts are hardly functioning. Jury trials are delayed. The government refuses to process green cards and visas and refuses to hear claims of asylum. Immigration law is seized up. Government offices responsible for all sorts of legal matters are simply closed. In some places (some very populous counties in Texas, for example), clerks are not issuing marriage licenses. Passport processing has come to a halt.
On the other hand, in many ways, the maxim gets it wrong. In this crisis, and indeed during wartime, governments tend to be super-busy. The COVID-19 crisis is in this regard very much like wartime. There has been a blizzard of decrees from the executive branch, at the federal and state level; Congress has passed enormously important statutes in a hurry, as have its state counterparts. Federal emergency laws are giving out loans like candy, although perhaps not in an evenhanded fashion. Unemployment insurance has been massively increased, as millions of men and women who lost jobs due to the pandemic have filed for unemployment and other benefits. And of course, the social distancing rules themselves often have the force of law. People were ordered in most states to stay home unless they must run essential errands like grocery shopping, or must go to work because they perform an essential job. These orders could be enforced with fines, and even with jail time.
Law in the time of a crisis is hurried, untested, and sometimes misguided. Emergency measures make use of whatever techniques government can dream up to deal with the crisis, or to take advantage of the chaos, as in the case of politically motivated abortion bans. The main actions make headlines. There are heated debates in Congress and in state legislatures, dozens of op-ed pieces, feverish discussions in the social media, and endless punditry on television and in the press.
With any kind of broad-scale crisis, we would expect to see bold governmental action—and a wide range of reactions to it. Think, for example, of the wide-ranging opinions about the bailout of big banks after the onset of the 2008 recession (compare, for example, opposing reflections on the bailout here and here). Without the benefit of hindsight, it is hard to say which actions are necessary or well designed. Historians will undoubtedly have much to say about this era of history.
Beneath the big questions and the big battles is a legal system that has been interrupted in ways that will affect many people’s lives. This is a more unique feature of this particular crisis, as its nature means that activities that require in-person contact cannot be carried out in the same way, or possibly at all. Let’s consider two examples of legal acts that require people to be with other people in order to be valid: executing wills and getting married.
Where There’s a Will, Is There a Way?
The threat of the virus has made more people think of the presence of the grim reaper (perhaps even more so if they encountered this lawyer dressed for the part on a crowded Florida beach). There has been a spike in demand, not just for Lysol and toilet paper, but also for estate planning. Lawyers, both in the United States and the United Kingdom, have been inundated with requests for help, from people in all walks of life. Several news outlets have reported that some firms have had huge increases in requests to help with wills—including (it was reported) many fairly young health care workers, who never made out a will before. Online estate planning sites have similarly reported a burst of business. There is nothing like the danger of death to focus the mind on putting one’s affairs in order. Apparently, sales of insurance, too, have gone up substantially, especially, and understandably, for life insurance. Not to mention the fact that there has been a rush to buy guns—action that reflects perhaps the same kind of paranoia that sparked the run on toilet paper.
Wealthy and sophisticated people, to be sure, have long since abandoned the use of wills as their primary mode of estate planning, in favor of living trusts or other forms of non-probate property. Middle-class people have tended to die intestate or to execute old-fashioned wills. Living trusts do not require witnesses, but they do require lawyers (they are hardly a do-it-yourself project), and they take time, money, and skill. There are many death-bed wills, but trust documents are another matter.
But even an ordinary will can be hard to create during a lockdown. The law of wills is ancient and is based on a highly formalistic set of rules developed in England centuries ago. For a will to be probated (a necessary step for it to be used to dictate the transmission of a person’s property at death), it must be “duly executed.” The traditional rules of due execution are based on an English law called the Wills Act. Under that rule, a will had to be signed by the testator (or a proxy in the testator’s presence if the testator was unable to sign). But this is not something the testator can do alone. The testator must sign, or acknowledge the signature, in front of two witnesses at the same time. In other words, the creation of a valid attested will means that three people must be in the same room. And not just in the same room—the witnesses must have a line of sight that permits them to see the testator’s signing, and the testator, in turn, must have the same opportunity to see the witnesses sign their own names to the document. This is easy enough in the lawyer’s office (though textbooks are filled with cases in which this simple ceremony was screwed up, leading to denial of probate for an otherwise valid will). But even simple acts are complicated during a pandemic. What if people are not permitted (and certainly not advised) to be together with anyone other than members of their household? Other household members would be the worst substitutes for witnesses, as they would stand to lose any inheritance in the will if they witnessed it.
There are certainly situations in which a person who wants to execute a will cannot easily accomplish it. A person confined to a hospital bed cannot get to a lawyer’s office, and even if witnesses are brought to the bedside, might not be able to see their signing the will. There’s a great deal of case law on the question of what it means for testators or witnesses, or both, to be in each other’s presence. But the punch line is often that a will is invalid because of some simple fact or circumstance that means the “presence” requirement was not satisfied. A hospital curtain was pulled at an inopportune moment. A witness stepped out for a bathroom break at just the wrong time. A disabled testator accepted help from someone whose kindness ended up doing in the will entirely.
The Wills Act is still the law in many states. In others, though, legislatures have modified the requirements slightly to reduce the likelihood that a will is denied probate for some hyper-technical reason. Even these more modern statutes, however, still contemplate a moment when the testator and at least one witness are in the room together, watching each other’s every move. (Pennsylvania is alone in not requiring any witnesses as long as the testator signed her own name and the will is in writing.) Some states have also adopted leniency doctrines that permit probate of a will even though the statutory formalities are not precisely satisfied. In some states, the substantial compliance doctrine means that a “near-miss” can be good enough to save the validity of an attempted will. And in others, a dispensing power means that the legislature has given probate courts the power to disregard the statutory formalities entirely if it is satisfied that the document was intended to be the testator’s will. There are still states, however, with a traditional due execution statute and neither of the applicable leniency doctrines. There, a valid will rests on the necessity of three people in the room during the moment of execution.
What are people to do if they want to execute a valid will during a pandemic lockdown? In about half the states, the legislature has authorized an alternative to the formal, witnessed will. A so-called holographic will does not require witnesses; instead, it must instead be in the testator’s handwriting and be signed. The handwriting and signature take the place of the usual formalities. It is hard to forge a holographic will, and, with only one person involved, there are fewer opportunities to make a mistake. The only strictness about the law of holographic wills is that statutes once required that every word on the page had to be in the testator’s handwriting. Many but not all states have relaxed this rule, requiring only that the “material” portions of the document be in the testator’s handwriting.
In states that permit them, holographic wills can provide a good alternative to a formal, attested will during something like the current lockdown. But do people know about the option? Lawyers dislike holographs, of course; they are almost always homemade and produce no fees for the lawyer. They would not be likely to suggest this as an option to a client, and there’s no reason to think that an average person not trained in law would know what the inheritance laws in their state provide. Moreover, a holographic will is a practical solution only for simple wills—a will, for example, that leaves everything to the kids. Only a pencil or pen and some paper are required. After all, nobody is going to sit down and spend hour after hour writing out a complex will plan by hand—nor would most people have the knowledge and skill necessary to create a complex estate plan on their own. But for people who need a quick stop-gap—they are facing a major operation, or embarking on a dangerous trip, or are just too busy at the time to go see a lawyer—the holograph can be a valuable tool. This would apply, too, to people who are subject to a shelter-in-place rule or who have tested positive for the coronavirus and quite literally must remain alone.
The other alternative is for states to suspend the usual rules regarding attested wills to permit electronic witnessing. This would allow a will to be executed with the testator in one location and the witnesses in another (or several)—connected the way the rest of the world is currently connected, through Zoom, Skype, or some other software that permits video conferencing. For the most part, courts have resisted arguments that this could be used under the existing statutes, taking the position that “presence” requires in-person “presence.”
Because of the pandemic restrictions, a few states have temporarily authorized electronic witnessing of wills. In New York, Governor Andrew Cuomo issued an executive order that temporarily changed a variety of rules because of the lockdown restrictions. Among them was temporary permission for the remote witnessing of wills. The order imposes some restrictions in order to maintain the integrity of the documents but eliminates the main requirement that the testator and witnesses physically be together. It permits the use of video technology in place of in-person presence. The testator must present valid identification over video to the witnesses if she is not personally known to them. The video technology must permit live, direct interaction among the parties, and the witnesses must receive a copy of the signature page by e-mail or fax on the day the witnessing takes place. The witnesses then must sign the signature page and return it to the testator within thirty days. None of this is complicated, and it resolves the core problem created by the social distancing rules. More than a dozen other states have changed the due execution rules to allow for easier creation of wills during the pandemic. (The American College of Trusts and Estates Counsel tracks the orders here.)
Perhaps the sudden education in the need for remote witnessing will spur states to adopt the Uniform Electronic Wills Act (UEWA), which the Uniform Law Commission adopted in 2019. Under that Act, the law of wills would be brought in line with the law of most other documents, which can now largely be signed electronically. The laws that permit those signatures to be valid expressly exempt wills, but the UEWA would change that. The law also provides an option to permit remote witnessing, similar to what’s been authorized temporarily in many states. The pandemic may provide the push this area of law needed to modernize.
By the Power Vested in Me by the State of . . . .
States have discovered that many of their laws do not work well when people must stay in their homes and away from other people. The witnessing of wills is a good example of a relatively simple process that is completely upended by the current situation. Marriage is another. Many counties across the country, including some in very populous areas, indefinitely suspended the issuance of marriage licenses in order to avoid exposing clerks to people who might have the coronavirus. And even in counties where licenses can be obtained, individual parties may not be able to meet the usual requirement that both parties appear in person to apply for a license. Couples who are not already living together (there actually are such couples) are not supposed to be in the same room at all, much less in a public place like a county clerk’s office. A valid marriage also must be solemnized, in a ceremony with witnesses, which creates yet another problem during the pandemic.
Are there alternatives? In about a dozen states, a couple can still enter into a “common-law marriage,” which permits the creation of a full, valid marriage without a license or solemnization by a recognized officiant. Two people simply need to agree to be married as of that moment. That’s it. But in the vast majority of states, common-law marriages are not recognized; and in the states that do not permit them, probably very few people know such a thing exists. What then? The right to marry is fundamental, and it’s not clear whether a state could refuse to issue marriage licenses for very long before running afoul of that constitutional right. But since most courts are closed, a couple with a promising case would likely be prevented from filing it any time soon.
As with wills, the government could also alleviate the problem and suspend the requirement that people present themselves in person to apply for a marriage license. Some counties have permitted electronic marriage license applications due to the pandemic. It’s hard to track the general trends because marriage licenses are handled at the county rather than the state level.
Wills and marriage licenses are just two examples of the way pandemic restrictions pose obstacles to long-standing legal institutions. But they are certainly not the only two. Governors have had to think through and issue sweeping executive orders that set out the terms and conditions of lockdowns and other emergency measures. Down the road, courts, legislatures, prosecutors, lawyers, and others will have to deal with the fallout of this period. Will a doctor who chooses to remove a ventilator from a patient who cannot survive in order to give it to one who could face murder charges? Will hospitals or other institutions face liability when people contract COVID-19 on the premises? Will employers be responsible if they do not protect their own workers from the disease? At this point, none of the answers are clear.
The COVID-19 crisis demonstrates—if any demonstration is still needed—how quickly and universally Americans rush into court, demanding from judges legal solutions to ethical, political, and social issues. Did a state government order businesses to close their doors? Mobs gather in front of the state capital, armed with assault rifles; others take their anger out with threatened litigation. Did the governor of California close all the beaches? Expect a lawsuit. The legal process is normally considered slow, sluggish, even behind the times. In the midst of a pandemic, everything (including law) seems to change with warp speed. And, as always, law and legal action are ubiquitous. The vast changes in society the pandemic is bringing will reverberate throughout the legal system.