In March, we wrote about the challenges self-isolation and social-distancing presented to the legalities of signing a will, in particular the requirement that a will is signed in the presence of at least two witnesses. We suggested a technological solution available in the form of electronic signatures for the testator and the two witnesses being present via a video meeting.
The Ministry of Justice has now announced that the Government is introducing legislation to temporarily allow people to use video-conferencing technology for the witnessing of wills by extending the definition of ‘presence’ of those making and witnessing wills to include a virtual presence. The amendment in and of itself sounds promising, however, as a wet signature is still required and the witnesses will still have to sign the same document, the practical challenges and health risks remain. If someone at risk is shielding and cannot attend an in-person signing, does it really help them if they instead need to go to the Post Office?
The Government guidance outlines a 5 stage signing and witnessing process that makes it possible for a person to sign a will in the presence of two witnesses by way of a two or three way video-link. Following the initial video-conference, the will document must be taken to the two witnesses (ideally within 24 hours) who must then sign the same will document by way of a further video conference. Not only does the act of sending the will document seem contradictory to the goal of protecting people shielding or self-isolating but there are additional risks associated with the built-in delay of the will physically moving between the testator and witnesses – that the testator may die during the period of delay, of the will becoming lost, getting damaged and potentially the risk of fomite transmission of COVID-19 as the document passes between households.
The decision not to allow electronic signatures, even on a temporary basis, offers no real solution for those shielding and self-isolating. The Law Commission has been reviewing the legislation in relation to wills since July 2017 and while we are told that they will be considering the possibility of electronic wills sometime in the future, the legislation remains largely as it did in 1837. The legislation needs to be modernised to take into account societal and technological changes, now more than ever.