The extraordinary nature of the COVID19 global pandemic has motivated some people to either make or revise their wills to reflect their changed circumstances In order to comply with the legislative formalities in each jurisdiction, a will must be properly signed and witnessed.
In Australia, each jurisdiction is slightly different but generally, the requirements for executing a formal will are that the document is in writing and signed by the Will maker with the intention the document is to be their will in front of at least two witnesses who must be mentally competent; in order to confirm that the will-maker’s signature, made in their presence was genuine.
Although no longer necessary, most wills have an attestation clause recording the circumstances of the signing and witnessing of the will.
New South Wales
In NSW s6 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made on 30 March 2020 provides that a person must not participate in a gathering in a public place of more than 2 persons unless it is a gathering of persons for the purposes of work; which includes work done as a volunteer or for a charitable organisation.
In Scotland powers of attorney may be witnessed and certified by video. Similarly, the Scottish Law Society has issued guidance that a professional will draftsman might act as a witness on a video call provided that they are not an executor.
However in England & Wales s9(c) of the Wills Act 1837(“the Act”) provides that
“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”
Remote witnessing introduces evidential difficulties concerning the question of whether or not the document signed by the testator is the same document signed by the witnesses. In order to satisfy the requirement as to the testator’s presence, they must have been in a position to see the witnesses sign.
Casson v Dade (1781) 28 ER 1010 approved a will where the witnesses signed the will inside the offices of the lawyer whilst the testatrix was in a carriage outside but in the line of sight of the witnesses.
If you were in a position for the Will maker to sign in front of a window while the two witnesses watch from outside; then pass the Will to the two witnesses to sign while the Will maker watches them sign through the window. However, this could be difficult to arrange.
The overriding purpose of the Act is to prevent fraud and ensure the veracity of the document (as the Will maker is not in a position to give evidence about the circumstances in which the Will was made) may weigh against interpreting s. 9 of the Act as permitting remote witnessing.
The BBC reports that Wills have been held in place by windscreen wipers and signed on a car bonnet in order to meet the requirements under the Act. Ministers say there are no plans to relax the strict rules. As such it wouldn’t be possible using video technology.
In the United States reports that documents are being signed at meetings arranged in parking lots where witnesses are able to watch through a car windshield as people sign their document before safely exchanging them.
On March 20, New York Governor Andrew Cuomo allowed remote online notarisation of documents — one of the more than 20 US states to provide a solution to this challenge of self-isolation.
In Canada, the Ontario government has amended the Succession Law Reform Act to enable legal professionals to witness the signing of wills and powers of attorney through the use of audio-visual communication technology such as Skype or Zoom. Similar legislation has been passed in other Canadian provinces, including British Columbia and Quebec