Probate Court: Remote Wills and More Contested Scenarios

Bill & Phil’s Gadget of the Month | Editorial | Olivia Park Bill Ramsey & Phillip Hampton

Probate Court: Remote Wills and More Battle of the Pros Contested Scenarios

iPad Pro 12.9 vs iPad Pro 9.7

We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9 iPad Pro as soon as it hit the market.

The iPad Pro 12.9

We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy.

But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard, and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the purpose of having an iPad. (At least we felt that way after we bought it.) The 12.9” display is so large you really need to carry it in a laptop bag, and it just does not have the portable, compact feel that made the original iPad and its successors so popular. So, while the iPad Pro 12.9 is powerful and has a great deal of potential—especially for graphic designers and media creators— it is not a laptop killer in our opinion.

The iPad Pro 9.7

We’re not sure if the Apple execs heard our complaints about the 12.9 iPad Pro, but we took it as a nod in our direction when they subsequently announced a smaller iPad Pro, the 9.7. Gadget nerds like us and our money are soon parted. So, when the new iPad Pro 9.7 became available, we had to buy one immediately, as well. And, as usual, we were excited in anticipation of delivery of our new gadget. We were certain that the new, smaller iPad would be more portable and more in line with the iPads we had come to know and love, while providing all the “Pro” advantages. Unfortunately, we had become spoiled. After using the iPad Pro 12.9, the screen on the 9.7 seemed tiny (yes, we know we complained that the 12.9 was too big; forgive us for being tech divas). With the 9.7 we began to feel like we were just looking at an iPhone screen. In fact, it was very hard to tell the difference between a regular iPad or iPad Air 2 and the iPad Pro 9.7. Yes, the iPad Pro 9.7 has a faster, more power processor than the iPad Air 2. Yes, Apple has updated the iPad Pro

The year 2020 introduced many new challenges into the practice of law. One of the most notable was the overnight introduction to widespread use of video conferencing. Estate cameras. Yes, you can take great selfies planning, in particular, was an area of practice directly impact- and great pictures with the high-resolution ed by the introduction of video conferencing. camera that comes with it. Yes, you can

In response to the COVID-19 epidemic, Gov. Bill Lee is- even record videos in 4k resolution. sued Executive Order No. 26 on April 9, 2020 whereby he Nevertheless, for just regular users temporarily suspended the “in person” requirement for the wit- it is very hard to tell the iPad Pro 9.7 nessing and notarization of certain legal documents, including apart from the iPad Air. The displays are but not limited to wills, trust agreements and durable power of nearly identical. They run the same softattorneys. Pursuant to the Executive Order, individuals could ware. They use the same apps. There execute these documents in the presence of a notary public just does not seem to be a great advanvia real-time audio and visual communication (such as Zoom, tage to having an iPad Pro 9.7 versus Teams, FaceTime, etc.), provided that certain requirements having a regular iPad (especially the were met. Such requirements included: (1) the physical pres- sleek iPad Air 2). ence of the witnesses, notary, and signatory in the State of Tennessee; (2) the ability of all parties to see and hear each iPad Pro 12.9 v. iPad Pro 9.7 other simultaneously; and (3) the inclusion of a statement in Returning to the comparison of the iPad the document stating that the parties executed the document Pro 12.9 to the iPad Pro 9.7 (yes, we got in compliance with Executive Order 26. In accordance with a bit sidetracked), we believe the iPad the Executive Order, parties could execute the document in Pro 12.9 is actually a superior product. counterparts; however, the witnesses and notary public had The high resolution and the four-speakto sign the document within ten days of the signatory’s date of er system take greater advantage of the execution. faster processor and superior display on

Gov. Bill Lee extended the effective term and provisions the iPad Pro models. In addition, you of Executive Order No. 26 through seven subsequent Execu- have more screen real estate to use tive Orders, the latest of which expired on April 28, 2021. As the split screen feature that is bundled a result, for slightly over a year, Tennessee attorneys could into iOS 9—now 9.3.1. Of course, you finalize estate planning documents and oversee their execu- can use the split screens feature on any tion without a client ever stepping foot into their law offices. iPad, but it just works better on the larg-

The suspension of “in person” notarization and witness- er screen. Th e bottom line is that while ing of documents facilitated the ability of estate planning attor- the 12.9 iPad Pro is a bit more cumberneys to assist their clients while mitigating the risk of contract- some to carry, you get spoiled once you ing COVID-19. Despite the benefit of remote notarization and have used the larger screen. You do not witnessing of documents, the elimination of the “in-person” want to return to a smaller iPad model. requirement raises some concerns. So, in our opinion, the iPad 12.9 is the Perhaps, one of the most significant concerns is the abil- winner (but barely) over the iPad Pro 9.7 ity of remote witnesses and notaries to evaluate the signa- or just a regular iPad. But, here is a word tory’s mental capacity and to confirm the signatory is acting to the wise and thrifty. If you are not a knowingly and freely. Estate planning documents, whether spendthrift like us, our best advice is to witnessed and notarized by traditional in-person means or by buy neither “Pro” model and stick with video conference, are subject to possible challenges on the an iPad Air 2. Save your money. n

basis of undue influence, improper execution, and/or incompetence. Remote notarization and remote witnessing place certain limitations on notaries and witnesses that in-person notarization and witnessing do not. Arguably, a witness is better able to the observe the signer’s capacity and demeanor in-person than he or she is able to do remotely. More so, it is impossible for a witness to observe people outside the view of the camera who could be affecting the signatory’s ability to act voluntarily. To minimize the risk of challenges to legal documents notarized and witnessed pursuant to Executive Order No. 26, some practitioners have taken measures such as re-executing estate planning documents in person.

Despite the necessity of remote execution for estate planning documents in light of the pandemic, there will inevitably be challenges to documents signed under Executive Order No. 26 and its extensions. Since the expiration of the allowance for remote execution and notarization is relatively new, it will likely be some time before attorneys will know how courts will handle these issues. n OLIVIA PARK Olivia Park practices civil litigation at McAngus Goudelock and Courie. Prior to joining MGC, she focused on intellectual property, litigation, wills, trusts and estates, as well as family law at a Nashville firm. Halloween is unequivocally her favorite holiday.

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