Covid-19 and Will signing in the social distancing era
Since our discussions in "Protecting your family - Wills, estate planning and the coronavirus (Covid-19) pandemic", some other countries have made legislative changes to Will preparation and execution requirements to facilitate the process in light of the current circumstances. Here we discuss some of these legislative changes and guidelines in some other jurisdictions, whether we might see a change in the law in England & Wales and whether it would be beneficial for our government to follow suit.
England & Wales
At the time of writing, the Law Society of England & Wales ("Law Society") is still in discussions with the Ministry of Justice about whether to relax temporarily the strict legal rules for executing Wills during this period. Relaxations could include allowing witnessing through video conference, abandoning the requirement for witnessing or extending the special provisions under the Wills Act for “Privileged Wills” (ordinarily for military servicemen) to the public for the duration of this crisis. Privileged Wills do not need to be witnessed if in writing or can be made orally.
Parliament has not yet made any official changes, and as it stands, “physical presence” is required for the parties involved. It is understood that some novel approaches are being taken such as witnessing being conducted through windows of homes or cars, the Law Society points out there can be no assurances that the Courts will accept these methods although it is hoped that the Courts take a pragmatic and sympathetic view given the current circumstances. In short though, this is not a recommended practice to ensure valid execution of a Will.
Dubai International Financial Centre ("DIFC")
Contrast the position in the DIFC where DIFC Wills must be registered at the DIFC Court and the signing and witnessing procedure usually take place at the Court with specific witnessing requirements. The DIFC Courts have developed a new system for the registration of Wills through video conferencing between the testator and two witnesses from different locations. Following the Wills Service Centre statement issued on 24 March 2020, the Courts have developed an online booking system for Will registration appointments, where the Will can now be uploaded and electronic signatures are permitted. Amongst other documents required to be uploaded, a clear copy of the witnesses' IDs must be uploaded. The Will needs to be registered before the appointment where the witnessing takes place.
In Jersey, the "COVID-19 (Signing of Instruments) (Jersey) Regulations 2020" came into force on 23 April 2020. These Regulations permit Wills to be validly executed despite the lack of physical presence of two witnesses until 30 September 2020 (subject to review). With this temporary arrangement, Wills can be executed through the use of audio and visual links. The Regulations provide, amongst other requirements, that the witnesses and testator can see each other, they must be able to positively identify the person signing the Will, see the individual signing the Will and confirm that the Will is the document that is in fact being signed. In respect of a Will governing immovable property (such as real estate), there is an additional requirement whereby the witnesses and the testator must hear, at the same time, the Will read aloud to the testator before it is signed. As soon as reasonably practical after the Will signing, the witnesses must provide the testator with a written declaration confirming that the requirements were fulfilled.
A new Queensland Supreme Court “Direction” permits the validity of Wills where the two witnesses are not physically present with the testator. This only applies to Wills signed between 1 March 2020 and 30 September 2020. A solicitor must draft the Will or be a witness to it; the witnesses must be present by way of video conferencing to witness the testator while he/she signs the Will; the witnesses must be able to identify the document executed and lastly the reason for witnessing the Will in such a way must be related to coronavirus.
United States of America
Varying laws apply across different states in the USA. Tennessee is an example of a state that has permitted remote witnessing and notarisation of Wills. An “Order” removes the in-person requirement for Will signing and witnessing and allows for the remote execution of Wills. Amongst other requirements, execution of the Will must take place by real time audio and visual communication and all parties must be based in Tennessee.
In accordance with the Epidemic Preparedness (Wills Act 2007 - Signing and Witnessing of Wills) Immediate Modification Order 2020, Wills can be signed and witnessed through an audio and visual link whilst the Epidemic Notice is in force. It must be clear on the face of the Will that it has been signed and witnessed in this way pursuant to the Epidemic Notice. The person witnessing the document is not physically required to sign the same document as the person making it.
The Requirement of Writing (Scotland) Act 1995 already allows Wills to be witnessed by videoconferencing. The Scottish Law Society guidance sets out practical steps for the solicitor to take to ensure the formalities are complied with as far as possible. For example during the video call, the solicitor will ask the testator to show the solicitor that there is no one else in the room to ensure the testator is not under undue influence.
Next steps in England & Wales?
As Parliamentary under-secretary Alex Chalk indicated to the House of Commons this week, “the constraints of the Covid-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud.”
It is understandable why England & Wales is reluctant to make radical or swift amendments to legislation which is almost 200 years old. On the other hand however, one thing that this pandemic has proven in many areas is the benefits of modern technological advancements which have helped to combat many issues that restrictions have brought to everyday life. It must also be taken into account that concerns about protecting legacies and ensuring effective estate planning is in place is of a greater focus to many people in the current climate and that practical steps must be considered to ensure that people have the peace of mind to implement Wills at the current time, and ultimately to avoid later disputes.
Given the legislative changes made in other jurisdictions, it is possible that the UK will follow suit. It seems sensible to introduce temporary measures, such as the laws in New Zealand that will apply only for the period of time the country is in the grip of Coronavirus. It is noted that the option to use videoconferencing in certain jurisdictions to witness the signing of a Will is accompanied by other safeguarding measures such as ensuring the individuals are not being pressured to sign by another individual in the room. Other countries have shown pragmatic and sensitive leadership which is useful to Parliament's consideration and we urge it to consider this.
Testators with assets in jurisdictions where formalities have been reformed or are less formal
For testators in the UK with assets in international jurisdictions, the option may be available to prepare and execute Wills in accordance with the laws of the relevant jurisdictions during this time. In some countries there is no requirement for a Will to be witnessed and handwritten Wills are sometimes acceptable. Given the current circumstances in England & Wales, for individuals that are particularly concerned, this could be an interim measure for at least part of their estates. Testators doing so should nonetheless be advised by a lawyer in the relevant jurisdiction.