Posted by on Jun 25, 2020 in LEGAL UPDATES, SUCCESSION LAW UPDATES

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The EU Succession Regulation 650/2012 (Article 27 (1)) provides that an English form will is valid even if made in Italy, in relation to Italian assets or any property situated in a member state which is a party to the Regulation.

According to the EU Regulation, any will or codicil to a will (described as a “disposition of property on death”) is valid, as long as it is made in accordance with the national law of the testator, or the testator’s place of domicile or residence, either at the time of the will or the time of death. A will also will be valid even if it does not satisfy any of the above, in relation to Immovable property (real estate) only, if it is deemed valid in the place where the immovable property is located.

To be a formally valid will in accordance with the law of England and Wales (Wills Act 1837 s. 9), the will must be in written form and signed by the testator in the presence of two independent witnesses who must be over 18 and may not be a beneficiary under the will.

The witnesses’ role can be crucial. If the Probate Registry has any doubt about the correct execution of the will or the capacity of the testator, the witnesses may be called on later to make an Affidavit about the circumstances of the making of the will.

During the past few months the Society of Trust and Estate Practitioners (STEP) has issued guidance for lawyers on execution of wills, as due to the social distancing restrictions in place it may be impossible for a testator to attend a law firm for the signing of a will in the presence of witnesses who are often employees of the firm.

It is more likely that clients will need to arrange their own witnesses if they can find friends or neighbours willing to act in these risky times with fear of spreading or being affected by the COVID-19 virus. There is no currently established rule that provides for the signing of a will to be witnessed by video so until this is established by case law or the Wills Act 1837 is amended, doing so could later provide to make the will invalid and is not recommended.

An amusing case from the English courts decided in the 18th century offers another possibility. In the case of Casson v Dade ((1781) 21 ER 39) the testatrix sat in her coach in front of the door of her lawyer’s home. The witnesses attested to the will from inside the lawyer’s office, while the testatrix watched them sign through the office window, according to the evidence given by another person who was in the  carriage. The witnesses, as soon as they had signed the will, took it to her, and she folded it up, and put it into her pocket. The Lord Chancellor who decided this case held this to be a good execution of the will.

So according to this case it is acceptable for the witnesses to be in line of sight of the testator even if not in the same room. This decision suggested that there must be at least real “eyesight” and therefore some degree of physical proximity between the testator and the witnesses. So for the moment English law does not accept witnessing to take place through a screen via the modern technology of video conferencing.

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