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Further Up Date on Execution of Wills & Trust Deeds during the COVID-19 Pandemic

26th May 2020

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 STEP (the Society of Trust and Estate Practitioners) and consultant editor for Halsbury’s Laws on Settlements.

Wills

With the gradual easing of the Coronavirus lockdown beginning it now seems less likely that the Government will enact legislation to either permit remote execution of Wills or otherwise relax the strict requirements of the Wills Act 1837. As discussed previously in my news article of 27th April 2020 the extension of the ‘privileged Will’ principle seemed a real possibility, however the Government now appears lukewarm about reform, The Parliamentary under secretary at the Ministry of Justice, Alex Chalk, has stated that the requirement of two independent witnesses provides  safeguards “to protect elderly and vulnerable people in particular against undue influence and fraud…”

In regard to ‘privileged Wills’ Mr Chalk commented that these are a “convention restricted to people making wills when on active military service where the normal formalities cannot be observed, but which do not equate to the current civil circumstances”

If there is to be reform practitioners may have to wait until the dust has settled after the Pandemic when long overdue reform as advocated by the Law Commission of England and Wales in its work on wills, and more recently on the electronic execution of documents, should take precedence.

Deeds

Unlike with Wills the requirements for a valid execution of a deed are less strict but still require the “presence” of a witness to ‘attest’ the signature. Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 provides:-

“An Instrument is validly executed as a deed by an individual if, and only if-

It is signed -
by him in the presence of a witness who attests the signature; or
at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b) It is delivered as a deed by him or a person authorised to do so on his behalf”

The necessary formalities of executing a valid deed where the parties are unable to physically meet at the same place was considered in R (on the application of Mercury Tax Group and another) v HMRC [2008] EWHC 2721 (‘Mercury’). In Mercury the court disapproved previous practices of parties signing signature pages without the complete document attached. The case concerned a tax dispute where the revenue had challenged the validity of a deed where a signature page attached to an earlier draft had been signed and subsequently attached to a later version with the signatories approval. The revenue argued that the execution was not valid as the final version had not been attached to the signatory page at point of execution. The court agreed and held that the ordinary meaning of the statutory requirements of executing a deed demanded that the signature and attestation must form part of the same ‘physical document’ and not separate documents appended later on.

The decision in Mercury sparked a wholesale review within the profession of best practice for executing deeds. For present purposes it remains important to note that parties to a deed need not be present with each other at execution but rather they must be present with their witness and have sight of the complete document when the signatory signs and the witness attests.

For the operation of trusts when trustees and beneficiaries may be subject to social distancing or self isolation deeds may therefore be executed remotely (unlike Wills). The Law Society has recently confirmed on 7th May 2020 by practice note entitled “Our position on the use of virtual execution and e-signature during the coronavirus (COVID-19) pandemic” that the Mercury approach to executing deeds remains best practice although not on a statutory footing. The Law Society in turn refers back to its earlier practice note from 16th February 2010 Practice note on execution of documents by virtual means to support this position. These sensible conclusions and advice as to the proper execution of deeds if done remotely are invaluable and serve as an important safeguard for trust lawyers during these difficult times.

Therefore the options available for executing trust deeds are twofold. If all the parties and witnesses can be safely together at the same venue then a signing meeting would be preferable, if not, then a PDF or equivalent copy of the complete and final document can be signed and attested remotely. Each party to the deed would have to have access to a scanner to email the whole document and completed signatory page to the other party and/or their lawyers as the case may be. The parties should further undertake to deliver the signed originals as appropriate into a composite form from which further copies can be taken with the trust solicitors holding the ‘original’ deed on file. What is important for a Mercury execution is that there is a clear paper trail in e-mails to confirm each party executed the “same physical document”.

When dealing with real property HM Land Registry will accept Mercury executed deeds but for purposes of land registration physical and contemporaneous witnessing remains essential.

Conclusions

The strict formalities of executing a Will under the Wills Act 1837 remain unavoidable during the Pandemic. Whilst glass partitions may be used between the testator and witnesses physical presence and a direct line of sight between them is essential for valid execution.

In respect of executing deeds the parties, whether trustees alone or trustees and beneficiaries, need not be physically present together at the point of execution. In the present circumstances the Mercury approach to execution offers practitioners useful flexibility during the Pandemic. However even with the Mercury execution to be valid the attestation must be contemporaneous and physically witnessed. A glass or perspex partition could easily be used to protect the signatory and witness to achieve this safely.

19th May 2020

Andrew Willetts TEP

awilletts@kbgchambers.co.uk

 

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Further Up Date on Execution of Wills & Trust Deeds during the COVID-19 Pandemic