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Execution of Wills and Deeds during the Covid-19 Pandemic by Andrew Willetts

27th April 2020

Execution of Wills and Deeds during the Covid-19 Pandemic

Andrew Willetts is a chancery practitioner specialising in contentious and non-contentious trust and probate work and regularly provides advice to executors, trustees and beneficiaries under will trusts and other settlements. Andrew has also written widely on the subject of trusts including for Westlaw and the New Law Journal. Andrew is a member of the Chancery Bar Association and STEP (the Society of Trust and Estate Practitioners).

At the time of writing it is understood that the Government is considering emergency legislation to permit the remote execution of Wills. By implication this is likely to include the execution of Deeds which also require witnesses to be ‘present’ to witness the execution process.

As things presently stand the formal requirements to execute a Will are strict and set out in section 9 of the Wills Act 1837 which states that no Will is valid unless:

1) It is in writing, and signed by the testator, or by some other person in his/her presence and by his/her direction
2) It appears that the testator intended by his/her signature to give effect to the will
3) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time each witness either:

i) attests and signs the will
ii) or acknowledges his/her signature in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

This also applies to Codicils even if they only make minor changes to the Will.

With the requirement for social distancing during the Covid-19 ‘lockdown’ there is much debate about whether Wills can be validly executed remotely by video link (whether Skype or Zoom etc). The Law Society of Scotland has suggested that remote video execution is acceptable whereas the Law Society of England & Wales takes the opposite view.

The difficulty is that under the Wills Act 1837 the law has been interpreted to require the physical presence of the testator with the two witnesses at the point of execution. The same approach would apply to Deeds albeit that a single witness must be ‘present’ when the relevant party to the Deed signs and thereafter attest to that signature.

“Presence’” in both cases must mean physical proximity and therefore would exclude remote video execution.

In the case of Brown v Skirrow (1902) the court determined that there must be a ‘direct line of sight’ between the testator and the witnesses. In Casson v Dade (1781) circumstances necessitated that at the time of signing by the testator there must be a line of sight in the presence of both witnesses before they each attest to it. This approach was approved more recently in Couser v Couser [1996] 1 WLR 1301. The following elements to a valid execution of a Will are therefore:

1) that there is visual contact between the parties concerned;
2) the witnesses must be aware of what is taking place ie., a formal execution of a will;
3) that there must be a ‘continuous execution’, namely that the testator signs witnessed by both witnesses who then sign in each others presence.

The options available to execute a valid Will during the this period of social distancing and self isolation are therefore limited when spouses and other family members who may be beneficiaries cannot act as witnesses):-

  • Providing that all the parties are physically present but at a safe distance from each other or behind glass, a Will can be validly executed (there may remain logistical problems about maintaining a safe distance, the use of disposable gloves and glass barriers when the document is passed from the testator to the witnesses and from one witness to another to sign and then back to the testator or solicitor to retain);
  • In the unlikely event that there are people in the same household as the testator who are not family or beneficiaries those individuals may properly act as witnesses in the usual way;
  • If neither of these options are available or considered safe the testator may instead make life time gifts, ’death bed’ (donatio mortis causa) bequests or prepare a letter of wishes to either redirect the estate under an existing valid discretionary Will trust (providing all relevant beneficiaries are already named or there is a power of addition) or to be ‘free standing’ in the hope that the family will give effect to its terms notwithstanding that it is not legally binding.

The author anticipates that the Government may authorise video execution or allow testators to make informal “privileged wills” by emergency and time limited legislation. Until such time best practice must be to ensure social distancing takes place at execution and the process is recorded either by witness statements from an observer or from the witnesses or the whole process is video recorded to mitigate against subsequent challenge. A similar approach is advised when executing Deeds.

 

Andrew Willetts TEP

awilletts@kbgchambers.co.uk

KBG Chambers

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Execution of Wills and Deeds during the Covid-19 Pandemic by Andrew Willetts