As pandemic drives surge of interest in wills, Minnesota lawyers navigate social distancing and the law

Donned in masks and gloved in nitrile, Minnesota's attorneys are scrambling to meet a rush in demand for estate planning as the pandemic pushes people to get their legal affairs in order.

Lawyers have had to make up new practices on the fly, with lockdown orders and safety protocols calling for masks in the boardroom and meetings at picnic tables, porches, even parking lot drive-throughs.

It was while walking into his office armed with protective gear that attorney Bob McLeod felt a sense of history shifting. "I remember thinking, 'This will be one for the books,' " said McLeod, who works with Best & Flanagan in downtown Minneapolis.

The Minnesota State Bar Association, worried that obstacles posed by the pandemic might make it tough for people to put their affairs in order — for example, when a client lives in a skilled nursing facility on lockdown and can't go to an attorney's office to sign documents — pushed for a change in state law to uphold wills drawn up with minor technical flaws.

A bill to put the so-called "harmless error" rule on the books was unanimously approved April 8 by the House Judiciary Finance and Civil Law Division. It was signed into law by Gov. Tim Walz on Wednesday as part of a larger COVID relief package. The law is in effect from March 13, the date Gov. Walz declared a peacetime emergency, until Feb. 15, 2021.

The spike in estate planning demand can't be measured in court — wills don't show up there until people actually die — but anecdotal evidence, including online searches, shows that plenty of people have death on their minds.

Searches for "get a will" and "last will and testament" are way up in the past month, according to Google Trends. Plenty of attorneys say they're hearing from both new estate planning clients and old ones who want to update their papers.

"This is a great time to start," said Mary Farquhar, of Shoreview, who with her husband hired an attorney to help them draw up legal papers. "You can find that house title, that marriage certificate. What else are you going to do? You're home anyway."

Farquhar said she started before the pandemic arrived, and though social distancing has made it harder to get documents signed in person or to visit the Social Security office for paperwork changes, she doesn't feel rushed.

"I'm not a doctor or nurse who is really feeling the weight of exposure," she said. "If we have to wait to file something properly, I can wait."

Attorney Susan Link of the Minneapolis-based Maslon firm said she's had to improvise her estate planning practice, using her husband and college-aged daughter as witnesses if necessary. The backyard picnic table serves as an office.

Link said her father-in-law, a former dean of the University of Notre Dame Law School, "just laughs" at what she's doing. "He asked, 'You're signing wills in your yard?' And I'm like, 'Yeah,' " she said.

But Link said it's possible to meet statutory requirements and still keep safety protocols in place. "You can get documents validly signed, even with what's going on," she said.

Link tells her clients to bring their own pens. She's wary of documents that are shuttled back and forth, because paper can carry viruses. She's consulted with her son, an emergency room doctor.

"He's been OK with everything I've said so far," she said.

Link said she's seeing another big change in her public service work. As program director for Wills for Heroes, a program of the Minnesota State Bar, Link and other volunteer attorneys provide free estate services for police officers, firefighters and other emergency responders.

But when the pandemic broke out, Wills for Heroes expanded its focus, Link said. So now they're offering the same service to doctors, nurses and others on the front lines of the pandemic fight.

A Stillwater law firm, Eckberg Lammers, is doing the same for first responders in the St. Croix Valley. "We were just looking at ways that we can give back," said attorney Jane Hill.

In addition to completing the typical estate planning papers, the firm might help a client sign an electronic authorization — a document that allows a fiduciary to shut down social media accounts without knowing the decedent's password. Getting everyone's signature has been problematic, Hill said, but the office set up a contactless procedure.

Like most attorneys, Hill and her colleagues prefer not to use the mail for estate planning documents because asking clients to sign paperwork without their attorneys present leaves too much room for error. Hill said she's even had drive-thru signings where she's met clients in the office parking lot.

The sudden onset of social distancing left attorneys wondering how they could meet their legal requirements, given the extraordinary challenges presented by a society in lockdown, said Minneapolis attorney Jolene Cutshall.

As chairwoman of the Probate and Trust Law Section of the state bar association, she helped steer two conversations about possible changes to the law. The lawyers rejected the idea of going fully electronic, said Cutshall, but settled on the harmless-error rule to help a probate judge excuse minor mistakes in an estate plan if there's clear evidence that the wishes of the deceased were being met. Seven other states have adopted the rule.

Bryan Lake, an attorney and lobbyist for the Minnesota State Bar, said the harmless-error rule wouldn't loosen the state's basic requirements for wills: a written document that's signed by the testator while witnessed by two people.

Lake said he's heard of other states that have done away with witnessing requirements for the duration of this peacetime emergency, but he thinks "that's an extreme approach." If the person signing the will doesn't have a clear mind or is under pressure to sign, a witness will see that, said Lake.

While the harmless-error rule won't change witness requirements, it might allow the court to uphold a will for which FaceTime was used to virtually witness a signing — a practice that might otherwise invalidate it.