Electronic signing and virtual witnessing of documents is becoming increasingly common but is not yet universally accepted, which can create problems for validating important documents such as wills.
The shift to working from home and enforced social distancing occasioned by the UK’s coronavirus (COVID-19) lockdown raises a number of issues for signing and execution of key documents, including wills.
Sadly, the deadly nature of the coronavirus pandemic has brought the issue of wills to the fore.
Many people have limited or no access to printers and/or scanners and be unable to physically sign documents. Witnessing signatures may also be practically challenging within social distancing guidelines.
The most obvious solution in most cases is to sign documents electronically. Such signatures are valid under English law, provided there is an intention to authenticate and that any execution formalities are satisfied.
However, this is not yet an option for wills, which still require ‘wet ink’ signatures on physical documents.
This was set out in a Law Commission report in September 2019 and supported by a UK Government Ministerial Statement on 3 March 2020.
It is based on the EU’s eIDAS Regulation, the UK’s Electronic Communications Act 2000, as amended, and case law relating to electronic and non-electronic signatures, and confirms that neither wills nor dispositions of registered land can be validly signed electronically at present.
Witnessing formalities for wills during lockdown
The legal requirements for signing a will are that the testator must sign the will in the presence of two or more independent witnesses who themselves are not beneficiaries.
The witnesses must be present while the testator signs the will and must also sign the will in the presence of the testator (but not necessarily in the presence of any other witness), as stipulated under Section 9 of the Wills Act 1837.
With the UK in lockdown, the physical presence of one, let alone two, independent witnesses may prove problematic, especially if the testator is in a hospital or care home, which have generally been closed to non-patients or residents to prevent the spread of coronavirus infection.
In the absence of emergency legislation or guidance, witnessing via video-conferencing is not currently possible.
The Law Commission considers that witnessing does not extend to witnessing via video-conferencing, because “presence” has been held to mean physical presence.
Whether witnessing by observing through a glass screen is acceptable has not been ruled on since the Wills Act 1837.
Given the lack of definitive guidance, the Law Society has opened discussions with the Ministry of Justice (MoJ) and the Solicitors Regulation Authority (SRA) to discuss the how to address legislative and regulatory concerns regarding the execution of wills, including witnessing requirements and the use of video-conferencing facilities.
Anecdotal evidence has included reports that people are trying to get around the strict formalities by witnessing signatures over garden fences and standing in driveways, with solicitors overseeing from a safe distance.
Despite the clear urgency of this issue for many people, the MoJ confirmed on 21 April 2020, that the government had no immediate plans to reform the requirements for executing and witnessing a will in light of the COVID-19 outbreak.
The Law Society has since confirmed that it is not possible to witness a will via video-conferencing under the current law, but that it is possible to supervise the signing of a will using electronic means where that individual is not acting as a witness to the will.
This has now also been confirmed by the SRA.
Currently, the Society of Trust and Estate Practitioners recommends that the government’s advice should be any solicitor’s starting point.
This may mean that the solicitor decides to post the will to the client with instructions on how to correctly execute it, leaving the client to make arrangements to find two independent witnesses to execute at a distance – a suggestion that has also made by the SRA.
However, the Law Society of Scotland has already issued emergency guidance for Scottish solicitors, which permits the witnessing of wills by video-conference. So the position in England and Wales may yet develop further.
How to prepare
Given that it remains unclear how long social distancing guidelines will remain in force and what impact this will have on the ability to physically sign documents, companies and individuals should take steps to prepare for alternative ways of authorising documents.
This includes communicating with all relevant parties as early as possible to agree a method of signature acceptable to each party.
As recommended by Society of Trust and Estate Practitioners and the SRA, parties should consider arranging for original documents to be posted for physical signature and check whether witnessing is likely to become an issue, and if so, ascertain suitable candidates for witnessing, depending on the type of document.
Where testators are residing in hospitals or care homes, it is advisable to speak to the relevant managers about what arrangements can be made for executing these unavoidable legal formalities.
This article was authored by James Lewis and Bhavul Haria, partner and senior associate in the dispute resolution team at European law firm, Fieldfisher.
