Our private client department has been busy over the last year as events have shown us that life can be short (or sadly unexpectedly truncated) and people want to get their affairs in order. The Ministry of Justice recognised this possibility and announced changes to the legislation directing how wills should be executed in July 2020.
Under Section 9 of the Wills Act 1837, it states that in order for a will to be valid it must be:
a) in writing and signed by the testator (or someone in his/her presence at his/her direction); and
b) it appears that the testator intended by his/her signature to give effect to the contents of the will; and
c) the signature is made/acknowledged by the testator in the presence of two or more witnesses present at the same time the testator signs; and
d) each witness either signs the will or acknowledges his/her signature in the presence of the testator (but not necessarily in the presence of any other witness).
The requirement for the proximity of the testator and two or more witnesses in order to execute a will is obviously problematic in the era of lockdowns, social distancing, the two-metre rule and periodic periods of self-isolation. Also, people end up in hospital with Covid-19 with the possibility of an imminent demise and visitors are only allowed at the last moment. Instructions for a will are practically difficult to give, and even if you can give them, the mechanics of execution of the will are now even more difficult in hospital than they were before the pandemic.
The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 came into effect on 28 September 2020 for wills made on or after 31 January 2020 until 31 January 2022. The effect of this is that the testator and witnesses do not have to be physically present when the testator signs the will but instead can witness the testator signing via videoconference or other visual transmission i.e. Facetime/Zoom/Teams/Whatsapp video call, so long as the witnesses physically attest and sign the original will subsequently. ‘Wet ink’ signatures must still be used. But they can be appended sequentially i.e.; after the testator has signed. Electronic signatures, as proposed by the Law Commission and endorsed by the government in March 2020 for use on some documents now, are not permitted for wills.
The will should have a clause stating that it has been executed virtually and that the witnessing is by video link, which must be live and clearly show the testator signing their name to a document that was clearly their will. The will then needs to be physically delivered (so long as you are not self-isolating) or sent to each witness (preferably on the same day) sequentially or together so that they can sign the will via video link with the testator who can clearly see each witness signing their will. It would make sense to secure a recorded video of the witnessing if possible. The will is then dated on the last date that a witness records their signature. If the testator dies before the last witness adds their signature the testator cannot witness the witnessing of their signature and the will is not valid.
It is also worth bearing in mind – particularly for those testators in care homes - that a 19th century case means that wills can be validly executed provided all the parties (i.e.; the Testator and two witnesses) can see each other through a window and all sign in front of each other.