Requiring witnesses to be physically present when a will is signed ensures that the person signing the will is the testator, rather than a third party forging their signature, and reduces the risk of the testator being coerced into signing the will or signing it without having the necessary mental capacity.
However, the COVID-19 outbreak, and the associated legal restrictions on human interaction, have made compliance with these witnessing requirements all but impossible. Acknowledging this, the States of Jersey have enacted the COVID-19 (Signing of Instruments) (Jersey) Regulations 2020 (the “Regulations”), which came into force on 23 April 2020.
For the period from the coming into force of the Regulations until 30 September 2020, a temporary régime is in place to allow wills to continue to be made in cases where the will cannot be signed by the testator in the physical presence of one or both of the witnesses because of the measures taken to reduce the spread of COVID-19.
The Regulations require that:
- at the time that the will is about to be signed, the testator and the witnesses must be able to see one another, either in person or over an audio-visual link;
- any witness who appears by audio-visual link – must positively identify the testator, must see the testator sign the will, and must satisfy himself or herself, by whatever means he or she considers practical, that the document signed by the testator is the will; and
- in the case of a will of immovables, each witness and the testator must hear, at the same time, the will read aloud in its entirety.
The Regulations prescribe the methods by which a witness can “positively identify” a testator. If the testator is known to the witness, the witness must be able to recognise the testator over the audio-visual link. If the testator is not known to the witness, the requirement is either:
- that the testator is able to identify himself or herself to the witness with any form of photographic identification which the witness is able to see over the audio-visual link, or
- that a medical professional or care worker is able to confirm the identity of the testator to the witness over the audio-visual link.
A witness who appears by audio-visual link must, as soon as is reasonably practicable after witnessing the signing of the will, provide the testator (or the testator’s advocate or solicitor, where retained to draft the will in question) with a written declaration. The declaration must state that the witness:
- has witnessed the signing of the will in question over audio-visual link;
- has positively identified the testator and the method used to do so;
- has seen the testator sign the will;
- is satisfied that the document signed by the testator is the will; and
- if the will is a will of immovables, has heard the will read aloud in its entirety.
The Regulations are a welcome and proportionate response to the current unprecedented circumstances. But they come with a warning in the Report which accompanied the draft Regulations:
“The preparation and witnessing of wills by audio-visual link represents a departure from normal practice for advocates and solicitors. It is therefore beholden on them to be assured, at all times, that any client who makes a legal document does so willingly (i.e. not under duress) and has the capacity to do so. This is a constant obligation placed on the legal profession.”