New law comes into force for executing wills during the Coronavirus pandemic
Many of our clients have reacted to the Coronavirus pandemic by considering whether their affairs are in good order and then deciding to make a will or to up-date an existing one.
Social distancing rules don’t just require people to keep two metres apart. They require nearly everyone not to go out and also to avoid admitting visitors to their homes. We have therefore been meeting our clients outside of their homes, usually in their garden or by speaking with them through an open window whilst wearing masks and gloves. This isn’t always easy, as very often there are neighbours located on either side of the property, meaning that privacy can’t be guaranteed. In addition, such a peculiar arrangement does not promote the right sort of lawyer and client encounter at which to discuss and reflect carefully upon the arrangements being made.
On 23 April 2020 new Covid-19 (Signing of Instruments) (Jersey) Regulations 2020 will come into force. These Regulations will undoubtedly help all those wishing to make or update a will without putting themselves at risk of catching the virus whilst doing so.
To be valid, Jersey wills of movable and immovable estate must be signed by the Testator ‘in the presence’ of two witnesses at the same time, and those witnesses must also sign the will in the presence of the Testator. The immovable will must also be read aloud to the Testator in the presence of the witnesses, one of whom should be a Jersey qualified lawyer.
‘Presence’ in this context means the witness must have a direct line of sight to see the Testator sign, but they need not be able to see exactly what is written. They need only be able to see the act of signing. This means that they can keep their distance but still validly witness the signing. We have been relying on this rule when helping our clients to execute their ‘through the window’ wills.
The new Regulations go further still. They apply to the situation where wills are made but 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.
Accordingly, until September 30 2020, a will in Jersey will be valid if it is signed and witnessed in the following way:
a) At the will signing, the Testator and the two witnesses must be able to see one another, either in person or over an audio-visual link;
b) Any witness that appears by audio-visual link:
- must positively identify the Testator;
- must see the Testator sign the will; and
- must satisfy himself/herself by whatever means he or she considers practical, that the document signed by the Testator is the Testator’s Will; and
c) In the case of a will of immovable property, each witness and the Testator must hear, at the same time, the will read aloud in its entirety.
If this visual connection between the Testator and the witnesses has been achieved by audio-visual link, the witnesses must then sign a declaration confirming that the will was executed in strict accordance with the new Regulations.
This means that it is now possible for someone to execute a will without coming into direct physical proximity with the witnesses or with the document upon which the witnesses sign their names.
This is a much welcomed temporary amendment to the Island’s Wills and Succession (Jersey) Law, and our sincere thanks go to everyone at the Law Draftsman’s office involved in bringing these regulations into force so quickly, thereby making a difficult job less awkward for all concerned.
Now that the procedure to be followed has been stream-lined any persons wishing to create or update their wills are invited to get in touch with a member Viberts Personal Law team any one of whom will be happy to advise on what to do and how to do it.