Covid-19 brought “remote” to lots of our lives — work, school, doctor visits, happy hour. One activity that remains in-person only: witnessing Wills. At least in most of the United States. Across the pond, though, remote witnessing may be catching on.
At the end of September, England and Wales will allow Wills to be witnessed by “videoconferencing or other visual transmission,” albeit temporarily. The amendment to the Wills Act of 1837 (the origin of most U.S. estate planning laws) is set to take effect September 28 and will be retroactive to January 31, when the first Covid-19 case was confirmed in the United Kingdom. The change expires January 31, 2022, but Parliament can end it sooner or extend.
What’s Remote Witnessing?
Under the UK’s current Wills Act 1837 (and almost all U.S. states), Will signings require the physical presence of two witnesses along with the testator. Under the amendment, witnesses must still be “in the presence” of the testator, but the presence can be virtual, which means they can connect by Zoom or Skype or Facetime, etc.
The move is a direct response to the social distancing recommended to reduce Covid-19 risk. Many people are voluntarily reducing contact with others, and many care facilities prohibit contact or impose mandatory quarantines. Signing Wills and other documents has become more difficult. (See Fleming & Curti’s signing strategy.)
Here in the U.S., states have taken measures to ease signing requirements. But because these things are governed by state laws, it’s a crazy quilt of different requirements. Most common (Arizona included): allowing remote notarization of signatures, which doesn’t help much for Wills.
The UK’s effort is elegant by comparison. Note, though, that the process is not the same as “digital Wills,” which are entirely virtual and allowed in several U.S. states (Arizona included). Under the Wills Act amendment, Wills must be in writing and those signing must put pen to paper – all on the same original document.
Government Provides Pointers
Suggested guidelines include:
- Ensure sound and video are sufficient for all parties to see and hear what is happening.
- The action must occur in real time. Watching a video of the testator signing won’t count.
- The testator should hold pages up to the camera so the witnesses can see it’s a Will.
- The act of signing must be visible; a view of head and shoulders of the testator will not do.
- The meeting should be recorded and stored as evidence of due execution.
- Witnesses should ideally sign within 24 hours of the testator’s signature.
- The document should indicate that virtual witnessing has occurred and whether a recording is available.
One obvious complication is the need to shuttle the signed document from the testator to at least one other location for witnessing. The testator or witnesses could die before signatures can be obtained. A witness could fall ill or become incapacitated and unable to sign before receiving the signed Will. The document could be damaged, destroyed, lost, or altered in transit.
In addition, the primary goal of the witness requirement would be significantly undermined. Witnessing guards against fraud and undue influence. On Zoom, it’s impossible to tell whether there’s a bullying family member off camera asserting influence. It’s also more difficult to determine whether the testator is of sound mind. These downsides mean these Wills will be easier to challenge. As one anonymous commenter put it: “The fraudsters will love this innovation. I foresee much litigation in years to come.”
As a result, remote witnessing is likely to be exceedingly rare. After all, it’s still less complicated, more efficient, and more defensible to seat the testator and witnesses in a room where they can remain six feet apart and see one another during the process. Still, if remote witnessing becomes accepted in the UK, it could migrate. Having the option would be a plus in those rare times when the tried and true signing ceremony carries considerable risk.