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Remote witnessing of Wills during Coronavirus

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Following on from our blog in March outlining the practical steps for signing your Will safely and legally during the Covid-19 pandemic, the Ministry of Justice has announced that the formal requirements of the Wills Act 1837 will be temporarily eased, owing to the challenges posed by the ongoing Covid-19 pandemic. The repercussions of this announcement could be far-reaching, but what does the announcement actually mean for clients and practitioners alike?

Formalities for signing a Will

The Wills Act 1837, which has been in place for over 150 years, states that a Will must be executed by the testator 'in the presence of' at least two witnesses, who must be together at the same time. 

In 2017, the Law Commission published a consultation paper, confirming that “presence” meant “physical presence” of witnesses, and prior to the government’s announcement, there had been no recorded case law examples of attestation having been carried out via video link.

What has changed, and what does this mean for testators?

Given the ongoing Covid-19 pandemic, many people faced with the difficulties of witnessing a Will in person have been conducting proceedings via video platforms such as Skype or Zoom, in the hope that this method would be recognised as valid.

As confirmed by Justice Secretary and Lord Chancellor, Rt Hon Robert Buckland QC MP, that official recognition is soon to be implemented by way of a statutory instrument under the Electronic Communications Act 2000, which will be put before parliament in September (the “Statutory Instrument”). Once enacted, this will include confirmation that “in the presence of” will include physical or remote presence, on the condition that “the quality of the sound and video is sufficient to see and hear what is happening at the time”. 

This announcement will offer reassurance to those who felt compelled by lockdown restrictions to execute their Wills against the strict wording of the Wills Act 1837, and who have been calling for such an announcement since March 2020.

How long will the remote attestation apply?

While the statutory instrument will not be enacted until September 2020, the Ministry of Justice has backdated its decision, meaning that any Wills or Codicils witnessed from 31 January 2020 will be held valid. This means that those who have taken this approach during the Covid-19 pandemic will be free from legal challenge on this point.  

While the government retains the power to reduce or extend the deadline for this amendment to the Wills Act 1837, the current deadline for remote attestation has been set as 31 January 2022, after which only “physical presence” will be permitted.

Are there any conditions for testators / witnesses to be aware of?

Yes, to safeguard against the potentially heightened risk of fraud or undue influence following these easing of formalities, it must be noted that witnesses will not be permitted to watch a pre-recorded video. The process must remain live throughout.

Further recommendations from the Ministry of Justice include the testator making the following statement: “I, [FIRST NAME], [SURNAME], wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely.”

Furthermore, although the attestation can be done remotely, and the process should be recorded (if possible), electronic signatures are still prohibited. To ensure that the signatures are genuine, they must be “wet ink” signatures, as has previously been the case.

What does this mean for practitioners?

The Society of Trust and Estate Practitioners (“STEP”) has issued guidance for its members, though this may require amendment once the Statutory Instrument is enacted in September.

Although this decision echoes provisions implemented in Scotland, Jersey, Australia and most of Canada, as well as several U.S states and Brazil (being two of the hardest hit nations by the Covid pandemic), STEP’s guidance warns against remote attestation becoming the norm. It is also important for practitioners to note that this announcement does not apply to probate applications that have either been issued already, or are in the process of being administered.

What are the potential pitfalls?

While testators will be relieved by the announcement, given the ongoing difficulties posed by Coronavirus, there remain a number of potential dangers in deviating from the established rules.

First of all, the wording of the amendments to be put before parliament in September is yet to be finalised, even though the Ministry of Justice has confirmed that the decision has been backdated to January 2020. This means that a number of Wills will be executed remotely without full knowledge of the proposed legislation, increasing the potential for falling foul of any ambiguities which may only come to light in September.

Furthermore, whereas physical attestation means that witness signatures follow on from one another quickly, remote attestation means that two witnesses living at opposite ends of the country could be involved in the signing process. Given that the witnesses will still be required to provide “wet ink” signatures on the same original document, despite geographical distance, there are concerns over how to prevent interference with Wills while being transported between witnesses.

Finally, the formalities of the Wills Act 1837 have been in place for almost two centuries, and are well-understood amongst legal practitioners. The proposed amendments will reduce this certainty, and open the door to potential errors being committed. Our Contentious Private Client team are already seeing a sharp rise in errors made in Wills caused by a lack of formalities as people rushed to make Wills without taking advice at the start of the pandemic. This is only like to increase.

Conclusion

Ultimately, given that the precise wording of the amendments is still to be finalised, a lack of clarity over how the same document can be transported safely to enable both witnesses to sign it without interference, and physical attestation has been practised and understood for the last 150 years, STEP guidance recommends that practitioners follow the conventional method. It urges caution over remote attestation, and states that this should only be considered as a last resort, which is a message we would echo at this time.

If you have any queries about the issues raised in this blog, please do not hesitate to contact our Private Client team. If you have concerns over how your Will or Codicil has been remotely witnessed, please do not hesitate to contact our Contentious Private Client team.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.