Remote Witnessing of Wills: A Step in the Right Direction

McDermott Will & Emery
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McDermott Will & Emery

The COVID-19 pandemic has highlighted the benefits of post-death planning, whilst also giving individuals the much-needed down-time to reflect on their wishes. This has brought about a flurry of requests for new wills to be drafted or old wills to be revised. Given the current national lockdown in England and Wales, how easy (or safe) is it to execute such an important document, especially when one is shielding or self-isolating?

IN DEPTH


Current Legislation

S.9 Wills Act 1837 sets out the current requirements for making and witnessing a will. Importantly, the act specifies that a will must be signed by the testator (male) or testatrix (female) (i.e., person making the will) “in the presence of two or more witnesses present at the same time”. The witnesses must then also sign, in the company of the testator or testatrix. It is widely accepted that “presence”, within the confines of the current legislation, means a physical presence.

Changes to the Current Legislation

To assist in easing the “physical presence” limitation of the act during this global crisis, the Government temporarily expanded the definition of “presence” to include a “virtual presence” “by means of videoconference or other visual transmission”.

Despite the amendment coming into force late in 2020, it currently applies to all wills and codicils made between 31 January 2020 and 31 January 2022, after which time the revision will expire and the conventional method of will-making will resume. It is important to note that, similar to other COVID-19 measures, the Government has the authority to shorten or extend this two-year period, should it be deemed appropriate to do so.

The temporary change does not apply in instances where the estate administration process is already underway.

The Government has clearly stated that electronic signatures and the use of “counterpart” documents will not be permitted during this window, as there is a real risk of fraud, undue influence and the possibility of different wills (or codicils) being signed. This is a balancing act, and the Government believes that permitting these additional measures would outweigh any benefit. That being said, the Law Commission has been reviewing the will-making process since 2017, which may lead to the provision of electronic wills in the future.

What Constitutes a “Virtual Presence”?

The most important element for witnessing a will (or codicil) virtually is that all parties have a “clear line of sight” to watch the others sign in real time. Pre-recorded videos are not permitted, and the type of telecommunications platform used is irrelevant.

The Government helpfully sets out a five-stage process for signing and witnessing a will by video link. This essentially involves the testator or testatrix signing the will in the “virtual presence” of two witness with a “clear line of sight”, before either physically taking or sending the will to the witnesses for their respective signatures. This should ideally occur within 24 hours of the will being signed, although it is recognised that this may not always be possible. Upon receipt of the original will by the witnesses, a similar procedure over video-link must be undertaken, whereby the testator or testatrix watches the witnesses sign. There is no legal requirements for the two witnesses to be “virtually present” when each other signs, but it is good practice. Therefore, if a testator or testatrix and each witness are in separate locations, this would require three video-link conferences, before the will would be properly executed and declared valid.

Government guidance suggests that all parts of the will-signing procedure should be recorded and stored securely, in case questions are raised and the recording needs to be used as evidence.

The alternative to virtual witnessing during the pandemic is socially distanced witnessing (i.e., witnessing through a window or in a garden), which is more in-line with the traditional will-making requirements. This poses obvious obstacles for those who are shielding or self-isolating.

Practicalities

The amendment to the act, together with the accompanying Government guidance, provides some welcomed clarity on the process that one should follow when making a will during these unprecedented times. However, how practical or safe are the temporary provisions?

The requirements of a wet signature and the use of a single document arguably does not go far enough to minimise the risk of transmitting the virus between households, if proper precautions are not followed. This is especially true for those shielding or self-isolating.

Other issues may also arise if the will is damaged or lost in the post, or more significantly, if the testator or testatrix dies before the witnesses are able to sign, rending the will invalid.

The COVID-19 pandemic has magnified the need for outdated legislation, such as the Act, to be modernised and brought into line with today’s collective needs.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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