The challenge of making a Will during COVID-19 lockdowns

The Problem

COVID-19 and lockdowns have disrupted life everywhere in 2020.

Much of the world has taken to using the internet to carry out the tasks that used to be done in person. Meetings, teaching, exercise and lots of other things have all migrated to online platforms.

COVID-19 has seen a spike in one thing – making a Will. Many people who had never made a Will saw the need to make one during the pandemic. However, this spike in Will-making has run into a new problem which hadn’t previously existed – how to witness the signing of a Will whilst in lockdown?

In a hard lockdown when people are not allowed out of their homes except for essential purposes, this is a particularly tricky problem. Hardly anyone is prepared to claim that being a witness to the signing of a Will is critical.

Legal requirements for witnessing of a Will

Some Asian countries like China, Taiwan and Japan have relatively involved and complicated requirements for a Will to be validly made, including having the Will written by hand.

However, it is common to find that you need at least two witnesses to be present when signing a Will in many Asian countries. Certainly, countries that are part of the Commonwealth that inherited English common law all require two witnesses for a Will to be made. Thus Malaysia, Singapore, Hong Kong, Brunei, and the Indian sub-continent countries all require at least two witnesses for a Will to be valid.

The difficult part is that the laws require the witnesses to be physically present with the Will-maker when the Will is being signed. During lockdown getting two persons together in one place is a challenge and three together near impossible.

Why is the use of zoom or video call unacceptable?

The advance of technology has allowed us to see others when we talk to them. We can even see them do stuff, including signing documents.

So why should witnessing the signing of a Will by a remote witness be an issue?

Remember when Donald Trump was hospitalised with COVID? Trump was shown on TV signing paperwork in hospital. Subsequently, the press drew attention to the fact that Trump had merely signed a blank sheet of paper.

So if a Will-maker asks someone to watch him or her signing a Will via video call or zoom the ‘witness’ cannot say for sure what it was signed. It could have been just a blank piece of paper.

Is this the end of the matter then?

The UK temporary solution

In mid-2020, the UK Government passed a law to allow people to use video conferencing technology to witness Wills being made.

In essence, witnesses’ requirement to be ‘present’ when witnessing the making of Wills has been extended to include a virtual presence as an alternative to physical presence.

The new laws apply to Wills made in England and Wales between 31 January 2020 and 31 January 2022.

“Line of sight” requirement

The key to the UK’s temporary solution is the issue of ‘line of sight’. The virtual witnesses are required to have a clear, unobstructed view of what the Will-maker is signing.

Examples of acceptable ‘line of sight’ situations are :

witnessing through a window or open door of a house or a vehicle;
witnessing from a corridor or adjacent room into a room with the door open;
witnessing outdoors from a short distance, for example in a garden.

Additional safeguards

The UK government has set out other steps that can be taken to reduce the risks of a Will witnessed remotely being rejected.

Aside from the UK’s detailed guidance notes, it is suggested that the entire Will signing be video recorded in case it needs to be produced in evidence in future.

Prohibitions to video witnessing

Witnessing pre-recorded videos is not allowed, and witnesses must see the Will being signed in real-time.

Most importantly, the requirements that the Will-maker have capacity and not be under undue influence continues to apply. So a Will made with video witnesses will be invalid if, say, the person recording the video of the Will-maker signing the Will is holding a gun out of the view of the camera.

A different solution

In Australia, the State of Victoria was locked down for some ten weeks.

Temporary laws were passed on 12 May 2020 allowing Wills to be witnessed remotely. However, these laws went even further than those passed in the UK.

Not only was the witnessing of Wills using video conferencing tools allowed but electronic or digital signatures by the Will-maker and the witnesses was also allowed. This made things a whole lot simpler than the UK.

However, these temporary laws had a “sunset” date of 24 October 2020, much shorter than the UK.

Is this solution ‘portable’?

The UK has recognised the problem and taken steps to solve it.

Perhaps because of the magnitude of the problems caused by COVID, many Asian countries have yet to do anything similar.

Even with vaccines beginning to be available, this problem will persist for a while more. It is possible that a resident in a nursing home hit by COVID may need to make a Will and for health reasons, only medical staff are allowed access. Expecting the medical staff to act as witnesses to a Will in addition to their duties is hardly the answer.

Is it time that Governments in Asia consider passing temporary laws to allow the signing of Wills using video conferencing tools?

Conclusion

It may be that the risks of fraud, coercion and incapacity are such that it isn’t possible to allow permanent changes to the way Wills are witnessed. Until better safeguards can be discovered, total inaction in the face of the problems posed by COVID and lockdown cannot be the answer either.

Thank you to ezWills Pte Ltd for allowing us to publish this timely and informative article.