Remote Execution Of Wills

Section 9 of the Wills Act 1837 states that “No will shall be valid unless it is in writing, signed by the testator…and the signature is made or acknowledged by the testator in the presence of two… witnesses…”

It is staggering to conceive that this piece of legislation, being just over a decade away from being two hundred years old, had to be amended in light of the unprecedented Covid-19 Pandemic.

Since 31^st January 2020 and up until 31^st January 2024, it is acceptable for the ‘presence’ as referred to above, to be virtual, i.e remote and not in person. It may even be that the law remains changed permanently after this date, to keep up with changing times, but for now that remains to be seen.

It must, however, be remembered that best practice states that, wherever possible, wills should still be signed/executed in the conventional sense.

With remote witnessing, other problems inevitably present themselves. At a conventional will signing, the testator would be alone but for the presence of the two chosen witnesses. With remote witnessing, either via video link, facetime calling etc., how can it be ensured that the testator is in fact on their own, if, for example, the remote witnesses were ever called upon later, if query arose over the calibre of the testator’s signature (which can sometimes prompt a query from the Probate Registry, as it can suggest a question mark over the testator’s knowledge and approval of the will contents), when the will is proved in the Probate Court?

It may be that the Probate Court requests an affidavit from one of the witnesses, in which they give a statement of truth about the circumstances of the will signing. To assist in the deterrence of this potential issue, words such as  ‘I the testator wish to make this will of my own free will and I sign it here before these witnesses who are witnessing remotely’ could be inserted within the execution section of the will itself, i.e where the testator and the witnesses sign.

In terms of the witnesses themselves, they must have a ‘clear line of sight’ to the testator when he or she is signing and they must both be virtually present at the same time. If the witnesses cannot be together, they must be connected via video link at the same time. Indeed the testator must also have a ‘clear line of sight’ of the witnesses, when he or she signs.

After the testator has signed, the original signed will must be taken to the witnesses, as soon as possible, the witnesses must then countersign the will in the presence of the testator once more. If the witnesses cannot be present with each other, the will must be taken to each in turn, and again, unnecessary delays should be avoided. Whilst each witness, when signing in the presence of the testator, does not need to be virtually present with the other (as is the case under the general law being contained in the Wills Act) it is considered best practice that they should be.

Of course, with a brief outline of the logistics referred to above regarding remote signing, it is clear to envisage the potential issues; what if some nasty fate befalls the testator prior to all three signing? A will is only legally valid when all three persons have fulfilled their role.