Virtual signing of Wills - too little, too late?
- AuthorAlice Rowlands
In response to the coronavirus pandemic, the introduction of new legislation has been announced allowing Wills to be witnessed virtually in England and Wales. Although the legislation is not expected to come into force until September, it will be backdated to apply to Wills made since 31 January 2020. It is expected to remain in force until 31 January 2022, although this time period may be shortened or extended if necessary.
The current formalities for signing a Will can be found under the Wills Act 1837, and could be considered by some as being out of date. In short, the formalities require a Testator (the person who is making the Will) to sign in the presence of two or more independent witnesses present at the same time. All witnesses must then also sign the Will in the Testator’s presence. The new rules will allow a Testator’s signature to be witnessed via video call using technology such as Skype and Zoom and presence will now include virtual presence as an alternative. All other formalities otherwise remain in force.
In the past, the Court has adopted a “line of sight” test for witnessing Wills. The witnesses must have a clear line of sight of the Testator signing the Will and understand that they are witnessing and acknowledging the document. This test has allowed Testators to have their Wills witnessed during the coronavirus pandemic with their witnesses positioned at a safe distance of 2 or more metres away from them or even through a window, as long as they could see the person signing.
Whilst the legislation appears to implement long-awaited changes which have been requested throughout the coronavirus pandemic, there are some potential risks to the proposal.
Is sending an original Will in the post a risk?
The guidance issued states that although the physical presence of witnesses is not required, all parties must still sign the same document. In order for the Will to be valid, therefore, the Testator and both witnesses must have actually signed the same document. The possible implications of this are that, if the Will is having to be sent to the different parties via post, there is a risk that the Will may be lost or damaged in the post. Further, it is not uncommon that Wills are made during a time where the Testator has been given a terminal diagnosis. The postal delays in this situation could result in the Testator passing away before the Will reaches the final witness and therefore without a valid Will in place, or with an outdated Will in place that no longer reflects their wishes. There has been no guidance given as to what would happen in this situation.
The intention is that the use of video technology in executing Wills should be a "last resort" and that where people can make their Will in the conventional way they should do so. This calls into question what constitutes a “last resort”? No guidance has been issued in respect of this, it is, therefore, possible that in the not too distant future, Wills which have been virtually witnessed may be challenged if it was considered that it would have been possible to have the Will witnessed in the usual way. Greater clarity on when remote witnessing is permitted will, therefore, be essential.
Failure to protect the most vulnerable
The legislation does not currently provide much flexibility for those who are most vulnerable. If the same document must be signed by all three persons, the Testator will either need to leave their house to post the Will or someone will need to come to collect the document, in which case they could probably have arranged for the witnesses to see the Will signed in person by somebody at a safe distance, or through an open door or window. It also does not protect those who may be placed under undue influence to sign their Wills. It is possible that someone who is putting pressure on them for the Will to be executed in this form could be present “behind the camera”. It would be impossible perhaps to even tell that they are there. This would, of course, be less of a risk where the person is meeting with their witnesses, who should at least be able to confirm who was in the room when the Will was signed. This could be important if there is a challenge to the Will in the future.
Our team have been working with our clients to come up with numerous variations of potential witnesses, from neighbours stood at a safe distance, to the person at the post office. In light of the creative means that have been used over the last few months, as well as the requirement that all parties sign the same document, it is questionable whether the change will cause more problems than it solves. This level of uncertainty and scope for problems will inevitably see a rise in inheritance claims going forward. It is important therefore to continue to obtain advice as to the best way forward in preparing and signing your Will, to look to safeguard against any future challenges.
We recommend to our clients that they review their Will every three years. Major changes in your circumstances should prompt you to do this too.
JCP’s Lifetime Planning team is always on hand for tailored and professional legal support.