Just at the time when people are thinking about their own mortality the rules around social distancing, self-isolation and the need to protect the vulnerable make the execution of Wills something of a challenge.
The legal formalities for executing a Will in Guernsey are much the same as they are in England and are intended to prevent fraud and undue influence. A Will must be in writing, and it must be signed, or the signature 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 presence of the testator. Normally those requirements do not cause too much of a problem, but in the context of COVID-19 they become quite challenging.
The requirement that the Will must be signed, or the signature acknowledged, "in the presence" of the witnesses is essential to the proper execution of the Will. We know from court cases in the past that being "in the presence" means that the witnesses must physically be together with the testator and they must 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 we have devised is that the testator stays inside their house and the witnesses remain outside standing two metres apart looking in through a window (perhaps speaking to each other over the phone); once the Will has been signed, the document is passed out through the letter-box and the witnesses then sign the Will 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 is then passed through a gap in the window and the witnesses then 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 the Will was witnessed over one of the popular video apps such as Zoom or Skype; it is doubted that the courts would agree that the witnesses were "present" in such circumstances.
In an age where digital signatures and video conferencing facilities are readily available to anyone with a smartphone, it is perhaps time to reconsider the centuries-old formalities for executing Wills. At the same time we could embrace new technology to reduce the risks of allegations of fraud or undue influence.
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