STEP launches Thought Leadership webinar series with a look at remote witnessing of wills, and asks whether it’s here to stay

Robert CaringtonLast week, STEP held the first of its Thought Leadership webinar series which examined the issue of remote witnessing of wills, and whether it would continue after COVID-19-related social distancing measures are lifted.

Emily Deane TEP, Technical Counsel at STEP, was joined on the panel by Peter Glowacki, Partner at BLG; and Anatol Dutta, Professor of private law at LMU Munich, with the event moderated by Shelley Rhoads Perry TEP, CEO Senior Advocacy Group.

The panel reviewed what measures their respective governments had taken.

In the UK the government laid a statutory instrument (SI) before parliament on 7 Sep, to come into force on 28 Sep, and while lasting until 31 Jan 2022, would be backdated to 31 Jan 2020. This SI allows someone to make a safe and valid will through remote witnessing, if no other options are available.

Inevitably this approach has led to a number of concerns: how do you assess the testator’s capacity and see if undue influence is being wielded? What if the will is lost in the post? Supposing the testator dies before the process is complete? While there has been no test case yet, STEP is urging extreme caution to members using this method, and recommends only using it as a last resort.

However the panel recognised that the current Wills Act is antiquated and that wider reform is on the horizon. It also discussed whether financial institutions would allow a will, if the need for a notary as a witness was dropped. The European Union is exploring a certificate of succession, which expands on the documents used in civil law jurisdictions which allow a bank to release funds to the beneficiary.

In Canada, different regions have implemented remote witnessing at different speeds and levels. Ontario was one of the first, releasing an order to allow the electronic execution of wills with witnesses. British Colombia has gone the furthest by allowing the video execution of wills, and has adopted legislation to make this permanent. It allows for electronic signatures and electronic wills and eliminates the need for notaries/lawyers as witnesses. It has noted such practical issues as the use of different platforms and users’ varying degrees of technological experience.

Most civil law jurisdictions allow public wills, instead of a witnessed will recognised by a notary, and some countries allow this to be done remotely. Germany, for instance, has not made many changes, as holographic wills which can be made without witnesses are already recognised.

The panel discussed the need for a notary/ lawyer to be a witness, and believe that this is likely to be retained in most jurisdictions.

The panel concluded that legislation can, and is, adapting to accept technological advances. While change is inevitable, the main challenge faced by governments will be to balance technical opportunities with robust safeguards.

Robert Carington is Policy Executive at STEP.