Jersey is now permitting Solicitors and advocates to witness the signing of Wills via video link to help comply with social distancing regulations.
The emergency legislation will operate temporarily until September 30 in the first instance.
Whilst legal professionals have been innovative with garden signings, window witnessing and ‘drive by’ signings, the States decided that such measures present privacy issues and could therefore present a risk to the testator.
The legislation will now make it easier to make Wills and obtain grants of probate and letters of administration whilst safely complying with social distancing guidelines.
Chief Minister, John Le Fondré, said:
“Obviously, at the moment, we know how important it is to limit face-to-face contact for the public health of our community. Therefore, while Covid-19 affects Jersey, it is intended that witnessing documents over audio-visual link will become normal practice,’ he said.
“There have been discussions within the hospital and care homes to make some form of device available. Feedback on that has been positive and this will be able to be facilitated.
“There is very much a general appreciation of the important need to still provide people with the legal right to make a will or execute important legal documents at this time.”
Clare Nicolle, Partner at Jersey-based firm Voisin Law, commented:
“Here in Jersey, like the UK, we have witnessed a significant increase in the demand for Wills, likely in the region of 70%. This has led to me (and my professional colleagues) witnessing Wills in back gardens, front doorsteps and car bonnets which is clearly not ideal. At least the weather has been good!
“The government were concerned about the lack of privacy – under Jersey law we have to read aloud a Will of immovable estate for it to be formally valid; in addition, concerns were raised about those in care homes and in our hospital who were prevented from executing a Will (under Jersey law a Will of immovable estate must be witnessed by a lawyer) and of course there were public health concerns that those of us who are executing wills for large numbers of people could be at risk of unwittingly spreading the virus.
“I am in support of the amendments to the law. They are temporary and will come to an end on 30 September 2020. The legislation provides a framework for the process, supported by a practice direction that has been issued by the Royal Court. The Will will be executed by the testator and the witnesses will each provide a Written Declaration in standard form confirming, amongst other things, that they identified the testator and that they are content that the document signed was the Will. The witnesses will not subsequently sign the Will. The Written Declarations will be held with but not attached to the Will.”
However, some were in strong opposition with the emergency regulations, highlighting the increased risk of undue influence and fraud if the independent witness is not in the physical space.
Deputy, Mike Higgins, said:
“It is an unfortunate fact that in times of crisis and the passing of emergency or urgent legislation to deal with these events unscrupulous and criminal acts are committed against the weak and vulnerable. It is our duty as States Members to guard against this.
“Whilst the vast majority of people looking after vulnerable people act correctly with great care and humanity, there are always those who will take advantage.”
Since the outbreak started spreading throughout the UK and lockdown restrictions were introduced, the Law Society of England and Wales has been communicating with the Ministry of Justice to discuss ways of relaxing the 1837 Wills Act.
In a recent parliamentary meeting, ministers were heard commenting on the difficulty in changing laws which were created to protect the testator.
In particular, when asked about the possibility of reducing the number of witnesses in order to make it easier to comply with health advice, ministers were clear that where the law fully protects vulnerable people, it is unlikely to change.
Alex Chalk MP, a junior justice minister, commented:
“The constraints of the Covid-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people, in particular against undue influence and fraud. Having two independent witnesses provides safeguards to those making wills.”
Given the Law Commission’s 2017 report into Wills suggesting that the two witnesses significantly reduce the risk of fraud and undue influence, this particular rule is unlikely to relax. However, could England and Wales allow witnesses to observe via video link if appropriate safeguards are considered and observed?
One Response
Although i agree this is good practice for these unusual times, what i don’t understand is why only Jersey based professionals can draft a Will for a Jersey resident. i as a UK Will writer with over 20 years in this field, wrote a Will for a Jersey resident, who was told by her Solicitor/Advocate that it was invalid in Jersey because it hadn’t been written by a Jersey firm? i grew up in the Island and left to further my career in England.