In a series of articles, we look back at how work in the Private Client sector has changed since the first national lockdown and how we can help clients as we move forward. Here we focus on Wills.
During the pandemic, one of the biggest challenges has been the execution of Wills which requires three people to be present at the same time. From 28 September 2020, it has been possible to execute Wills remotely and whilst the law is retrospective in relation to this (applicable to Wills made from 31 January 2020) in the initial lockdown this option was not available to clients.
The only way to validly execute a Will in England and Wales during the original lockdown was governed by legislation introduced in 1837. That is, the Will must be signed by the person making the Will (“the Testator”) in the presence of two witnesses who must also sign in the presence of the Testator and each other.
An abundance of case law has elaborated on this legislation over the centuries. Perhaps most importantly for the purposes of dealing with the pandemic, was case law confirming what is often referred to as the “line of sight rule”. This is in relation to witnesses and how they must be present to witness the Will. The rule sets out that the witness does not have to be in the same room as the Testator so long as they have a clear line of sight as to the Testator’s signature. Similarly, for witnesses signing the Will, the Testator and the other witness must have a clear line of vision for the signature of the witness in question. As Key Workers we have therefore been able to use this rule in order to attend on clients and arrange the signature of Wills whilst complying with all social distancing requirements.
Moving forward, there is now also the option to sign Wills remotely. For reasons which will be explored further in series 4, guidance regarding the remote signing of Wills states that this should very much be a last resort. As restrictions continue to be in force the procedure set out above remains the status quo.
With respect to the signing of Wills remotely, the rules around the formalities have not changed. The Testator still needs to sign the Will in the presence of two witnesses who must also sign the Will in the presence of the Testator and each other.
If you imagine, for remote signings, the Testator will be sat at their computer with a webcam and internet connection with the Will in front of them ready to sign. They will start a video call with the witnesses. The witnesses can be both together on one call or joining from two separate calls. Alternatively, the Testator could have one of the witnesses present with them and have the other join via video call if they are all able to see the signing of the Will either physically or remotely this satisfies the test.
The guidance states that the video call should ideally be recorded and a sweep of the room in which the Testator is signing should be made to try to eliminate concerns around undue influence and coercion. Once that has been done and everyone is able to see clearly then the Testator can sign the Will and in turn this signing has been physically witnessed by the witnesses on the call.
However, the witnesses must physically sign the document. It will therefore be a case of dropping it off at the house of the first witness or sending it out in the post. The process needs to be started again with a video call. The Will then needs to be sent or delivered to the second witness and the process repeated. The remote signing must also be done in real time, no pre-recorded videos of the signing are allowed. No electronic signatures are permitted.
As you will appreciate, if the Testator us infirm or a witness cannot physically get out to deliver the Will then they are relying on the post so it could take some time for all the signatures to appear on the document. If during that time the Testator dies, then the Will is not valid. It is only valid once everyone has signed.
Given these restrictions, it has been argued that more could have been done to facilitate the remote signing of Wills. That being said, it is important to also safeguard the individual making the Will to ensure that no questions are raised over the validity of the Will after their death. It is fair to say that in the Covid era, there could be an increase in Wills being challenged on the grounds of invalid execution if proper processes are not followed. Going forward we are more aware of the challenges this brings to signing Wills and are on hand to help clients in all aspects of preparing and executing Wills, as well as, with wider succession and Inheritance Tax planning.
For further information and to find out how we can help, please do not hesitate to get in touch with our expert Private Client Team.