The Coronavirus Pandemic in 2020 thrust upon us the concept of social distancing and lockdown measures, the likes of which most people will never have experienced in their lifetime. One of the many difficulties that this has presented are the practicalities of getting wills executed correctly. The existing rules for the signing and witnessing of wills have been in place for nearly 200 years and state that the testator (the person making the will) must sign their will in the presence of two independent witnesses. This involves both witnesses having a clear line of sight to the testator signing the will. This has led to great uncertainty and, for many people, delay and stress in getting their wills executed correctly.
The government have responded to this by introducing new legislation that will allow wills to be witnessed remotely using video conferencing tools such as Zoom, WhatsApp and Factime. These new measures have been backdated to January 2020 and will stay in force until January 2022, after which they will be reviewed. The government have been clear that this is a temporary change in the rules and should only be used as a last resort where is it not possible for a will to be signed in any other way.
So are these new measures a positive change to the existing rules? Many willwriters will cautiously welcome the news that the introduction of remote witnessing of wills may well be a step towards reform and digitalisation of this very important area. It is, however, important to realise that the introduction of this legislation at a time where there is a huge demand for wills must be carefully managed to ensure that the wills are signed in compliance of the new rules. Clear instructions will have to be given to the testator and the witnesses to ensure that the will is signed and witnessed correctly, and the video evidence needs to be clear and audible.
As well as correct execution, the other area of concern will be that the new process could leave the signing of wills open to abuse, especially the risk of coercion and undue influence. How far will the testator have to go to prove that they are acting of their own free will and are of sound mind? How far do they have to go to show that there is no-one on the other side of the room, out of view of the camera, that could be influencing them in one way or another? It will be very important that the video footage is clear and concise. It may also be helpful for the testator to speak a few words before signing the will to demonstrate intention and capacity.
Even taking into account the uncertainty surrounding how the new rules will work, there is no doubt that during these uncertain times the new rules will provide clarity for many. It introduces a legal way for wills to be signed not only during times of lockdown, but for people in hospital who are not allowed visitors and would otherwise have no other way of signing a will. It is hoped that the legislation will evolve over time to embrace a new era of secure digital signing and execution of wills.