By, Robert Robbins, Elder & Disability Law Clinic Student, Fall 2021
To execute a valid will in Virginia, a number of formalities must be satisfied. One in particular, is the presence of two witnesses. While this may seem like an easy requirement to fulfill, there is a lot of gray area which can muddle the execution. The specific element that is particularly interesting in the current day and age is ‘presence.’ In order to satisfy the presence element, Virginia uses the “conscious presence test;”  the conscious presence test generally requires that the witnesses are within the range of any of the testator’s senses. In plain English, as long as the witnesses are in the area of the signing and are able to understand exactly what is going on, then they have fulfilled this requirement.
However, the law appears to lag behind common sense in one major way, video communication. To this point in time, people cannot witness a signing via Facetime, Skype, or Zoom (also known as “remote witnessing”). Considering the advancements in technology, it would appear that there is no doubt a witness could pass the “conscious presence test” via an online video communication. The Uniform Law Commission (ULC) would agree — in 2019 the ULC released the Uniform Electronic Wills Act that encouraged states to adopt a definition of “electronic presence.” Since that time, only Colorado, North Dakota, and Utah have adopted the recommended definitions, and North Dakota has specifically rejected remote witnessing. 
In the age of digital communication, there is a strong argument to be made that remote witnessing is a viable way to meet will formalities. Virginia has not adopted a definition of electronic presence, and default remote witnessing is not a valid avenue in the commonwealth. The Virginia legislature should consider a definition of electronic presence that allows for remote witnessing because it is the commonsense thing to do. Considering that the pandemic has forced our world into an online space, there is no doubt that we are capable of interpersonal communication digitally. Accordingly, virtual presence during will signings should be a no brainer.
 Code of Virginia § 64.2-403
 § 64.2-1603
 See, Uniform Electronic Wills Act, For the Uniform Act, https://www.uniformlaws.org/viewdocument/final-act-with-comments-130?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71&tab=librarydocumentshttps://www.uniformlaws.org/viewdocument/final-act-with-comments-130?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71&tab=librarydocuments
 See, https://frostbrowntodd.com/when-and-where-can-i-sign-my-will-with-remote-witnessing-estate-planning-lessons-learned-from-the-pandemic/