On April 15, 2020, Minnesota Governor Tim Walz signed into law new legislation related to COVID-19.  Among many other provisions, the legislation includes a relaxation of the normal formalities for signing a Will by including a “Harmless Error” provision.

Typically, in order for a person to create a Will, two witnesses must be present to witness the person’s signature (or someone signing on that person’s behalf), the acknowledgement of the signature, or the acknowledgement of the Will.  The new legislation provides that a document can properly count as a Will (or codicil, revocation or revival) if clear and convincing evidence establishes that the decedent intended for the document to be such.

What this means in practice is that there is an avenue to allow an un-witnessed Will to be deemed valid.  However, it is still less than ideal, and should only be used if witnesses truly cannot be used.  That’s because demonstrating by clear and convincing evidence that an intended Will should fall under the harmless error exception requires a formal probate proceeding, so that evidence can be properly presented.  Any documents signed under the harmless error exception would ideally be redone at a later date with complete formalities, in order to avoid a formal probate.

This change to current law is not permanent.  It only applies to documents executed on or after March 13, 2020, but before February 15, 2021.

For those who have delayed completing estate planning documents because of a concern about having witnesses present, we recommend proceeding with your documents now, and revisiting them when proper formalities can be used.  Other estate planning documents (trusts, powers of attorney and health care directives) have their own requirements for full execution, but there are options available to put in place as close to a full estate plan as is possible now.

For more information or help making changes to your estate plan, please feel free to contact a member of Winthrop & Weinstine’s Trust and Estates team.