On April 19, 2020, the South Dakota Supreme Court issued an emergency order in response to the COVID-19 pandemic entitled, “Amended Emergency Order Regarding Court Reporters, Witnesses and Notarization in Midst of the COVID-19 Pandemic” (the “Emergency Order”). The Emergency Order will stay in effect until modified or repealed by the South Dakota Supreme Court.

One requirement for a valid non-holographic[1] will in South Dakota is that the will must be “[s]igned in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator’s acknowledgment of that signature.” See SDCL 29A-2-502 (but except in the limited circumstances otherwise provided for in SDCL 29A-2-503[2]).  In a time of social distancing and social precautions to limit potential exposure to COVID-19, a will execution with two witnesses in the physical presence of the testator is a scenario that many testators and witnesses are uncomfortable being in at this time. The Emergency Order alleviates these concerns and specifies that the use of “communication technology” is permitted in order to meet the requirement of being in the “conscious presence” of the testator during the time that the Emergency Order is in effect. This function requires two or more witnesses to be able to communicate virtually with the testator through use of electronic devices or methods that allow all of the parties to both hear and see each other while not in the personal vicinity of one another (e.g. video conferencing).

Additional Resources: What is Remote Notarization? See also, FAQs: How to Prepare Your Will from Home

Pursuant to SDCL 34-12D-2, a declaration (i.e. a living will) also requires two witnesses. The Emergency Order, however, also permits the use of communication technology for the execution of these documents.  All witnesses who participate via communication technology for the execution of wills or declarations as covered by the Emergency Order are required to mail the page, or pages that contain the witnesses’ original signatures to the declarant or testator or the declarant’s or testator’s attorney.

The execution of a South Dakota trust does not require witnesses, and neither South Dakota trusts nor wills or declarations require a notary, unless the will is to be a self-proved will under SDCL 29A-2-504, but notarization is generally a best practice and used by many practitioners. Durable powers of attorney, including health care powers of attorney, in South Dakota require that the signature of the principal “must be witnessed by two other adult individuals or by a notary public.” SDCL 59-7-2.1.

As of July 1, 2019, South Dakota had already passed a statute, SDCL 18-1-11.1, that allows the remote notarization of documents. Specifically, a South Dakota notary can notarize documents through the use of “communication technology.” “Communication technology” is defined as “an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other by sight and sound.” SDCL 18-1-1.1(2). The requirements for a notarial officer to be able to notarize documents remotely, as provided for in SDCL 18-1-11.1, are as follows:

  1. The notarial officer must have “personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed”;
  2. Once an individual has signed the document remotely, the notary must affix her signature “to the original tangible document executed by the person”; and
  3. The notary must indicate in her certificate:
    1. the remote location of the individual who executed the document;
    2. “[T]hat the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of communication technology”; and
    3. That the notary was “reasonably [able] to confirm that the document before the notarial officer [was] the same document in which the person made the statement or on which the person executed a signature.” SDCL 18-1-11.1.

The only change that the Emergency Order makes for remote notarization is when there are witnesses involved, the Emergency Order specifies that, “Notaries and other persons qualified to administer an oath in State of South Dakota may swear a witness remotely by communication technology, provided that they can positively identify the witness.”

[1] SDCL 29A-2-502 provides that, “A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.”

[2] SDCL 29A-2-503 states:

Although a document or writing added upon a document was not executed in compliance with § 29A-2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will.

This article was shared by Leimberg Information Services, Inc. (LISI) for South Dakota in the state-by-state summaries, “Slow Return to the “New Normal,” LISI Estate Planning Newsletter #2794 (May 11, 2020) and “Different Approaches to Signing/Executing Estate Planning Documents,” LISI Estate Planning Newsletter #2799 (June 11, 2020.)

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.