One of the many challenges of ‘lockdown’ was the signing and witnessing of Wills. The rules for correctly signing Wills in England were set out in the Wills Act 1837 which, strangely enough, did not envisage the digital developments of our age (being more for the realms of science fiction).
The Act clearly states that a Will must be signed by the testator (the person making the Will) “in the presence of” two witnesses who must also sign the Will in the presence of the testator. The witnesses must have a ‘clear line of sight’ of the testator signing and vice versa.
The pandemic moved ‘must make a Will’ to the top of some people’s ‘to do’ list which resulted in a number of creative solutions – signing across doorsteps, in gardens and across window ledges. Thankfully the weather was kind to us!
The Government has now announced that the 1837 Act will be temporarily amended so that “in the presence of” can now include a virtual presence until at least 31 January 2022.
The legislation itself has yet to follow but it’s already clear that it would be dangerous to take this at face value. Quite rightly there are some fairly onerous procedural points that need to be complied with. For example, there needs to be a series of recorded video calls in which each of the testator and the two witnesses sign (and can be seen to sign) the same physical document. That in itself relies on all concerned being able to use the technology correctly and the document safely passing from one party to another.
If there are questions regarding capacity or undue influence are they going to be addressed via a video link? Anyone who has tried to take part in a virtual meeting probably realises they make the best of us look as if our capacity is questionable at times. How and where does one save the recordings? If it’s the testator, how will his/her executors access the recordings after his/her death? What if it gets deleted? What if the testator dies before the witnesses can sign?
This is not going to be a ‘quick fix’ or a more convenient way of doing things. It is, quite simply, going to be a last resort where there is no other option.