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28 May 2020
Although COVID-19 has forced people to consider their mortality, the rules around social distancing, self-isolation and the need to protect the vulnerable make the execution of wills challenging.
The legal formalities for executing a will in Guernsey aim to prevent fraud and undue influence. A will must be in writing and it must be signed, or the signature must be acknowledged, by the testator in the presence of two or more witnesses who are present at the same time. The witnesses must then sign the will in the testator's presence. These requirements do not normally cause much of a problem but can become quite challenging in the context of COVID-19.
The requirements that a will must be signed, and that the signature must be acknowledged, in the presence of the witnesses is essential to proper execution. Case law demonstrates that being 'in the presence' means that the witnesses must physically be together with the testator and be able to see the testator's signature.
Under current states of Guernsey directions, the testator and the witnesses must keep at least two metres apart. Three people assembling together for the purpose of executing a will in accordance with the law would need quite a large space and would have to be careful about sharing pens and handling the actual document.
One solution is for the testator to stay inside their house and the witnesses to remain outside, standing two metres apart and looking in through a window (perhaps speaking to each other over the phone). Once the will has been signed, it can be passed out through the letterbox and the witnesses can sign it in sight of the testator. Another option is for the testator to remain in a car and for the witnesses to view the signing through the car windows. The will can then be passed through the window and the witnesses can apply their signatures leaning on the bonnet of the car in view of the testator.
It seems unlikely that the courts would uphold a will where it was witnessed over a video app, such as Zoom or Skype. In such circumstances, it is doubtful that the courts would agree that the witnesses had been present.
In an age where digital signatures and videoconferencing facilities are readily available, it is perhaps time to reconsider the centuries-old formalities for executing wills. At the same time, new technology could be embraced to reduce the risks of allegations of fraud or undue influence.
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