Social distancing mandates accompanying the COVID-19 fight wreaked havoc on all in-person activities in 2020. Concerts and conventions halted across the nation. Businesses scrambled to implement work-from-home strategies. It was vital to adapt activities that were required by law to occur in person, such as the witnessing and execution of legal documents.
On April 9, 2020, Tennessee Governor Bill Lee signed Executive Order No. 26 (the Order), now extended for the third time through October 1, 2020. To permit remote notarization and witnessing, the Order suspends several statutes that otherwise would require a signer to execute a document in the physical presence of a notary public and/or witnesses.
The Order requires the signer, the notary and the witnesses to be present simultaneously and to be able to hear and see one another by using real time audio and visual communication by means such as Skype®, FaceTime®, Zoom®, WebEx® or similar technology. The parties also must all be in Tennessee at the time of the execution of the document. Much like pre-pandemic days, the notary and/or witnesses must verify the identity of the signer at the time of the signing either by personal knowledge or based upon a government-issued ID. The signer and witnesses must identify the document being executed and witnessed, respectively, and the actual signature of the signer must be observed during the real-time audio/visual communication. The document must include a provision stating that it was executed in compliance with the Order and/or subsequent extensions. Lastly, the execution, witnessing, or notarization of the document must be memorialized in one of two ways: (1) the people who execute, witness or notarize the document, as applicable, while in different locations from one another, may sign separate signature pages in counterparts, or (2) a subsequent notarization or witnessing of the original document within ten days of observing the signer execute the document.
The Order’s requirements appear straightforward, but as with all well-intentioned laws, questions may arise. How liberally will these requirements be construed? Will the validity of the execution of documents under the Order come into question in the future? What steps should be taken to protect against such challenges? Practical steps to follow are: (1) read and understand the Order before remotely executing any documents, and (2) be certain to comply strictly with the Order to avoid potential challenges. If you are uncertain, consult with an attorney who, likewise, should adhere to this standard of care.