Every will needs to be witnessed: there must be two third parties in place in order to confirm that the person compiling the will is cognitively capable of doing so and that these are their wishes when it comes to dispersing their estate.
Wills have traditionally and legally been witnessed in person. The witness for will signing should literally be ‘in the room’ when the documents are signed. Recent global events have, however, made matters more problematic.
The legal requirements for will-witnessing in Ireland
Firstly, there are some general legal requirements to remember ahead of the question relating to will witnessing in person. For example, the witness cannot be a beneficiary under the will, so that will usually rule out close family members.
Other requirements stipulate that the person writing the will is over 18 and they must be of sound mind. They must sign the will and this has to be witnessed by two additional parties. Until recently, all of this had to be done in person, but recent global events have meant that changes to the law have been necessary.
Impact of Covid-19 on will creating and witnessing
The Covid-19 pandemic added obvious complications to the question of witnessing wills in person. Estate planning became problematic in a whole host of different circumstances, for obvious reasons.
For a third person to witness a will in lockdown, they would have had to cohabit in the writer’s bubble. On the majority of occasions, they would be close family members and, in all probability, beneficiaries of that will.
Witnessing, in person, naturally became difficult and this was at a time when more people were concerned about getting a will in place. A solution was needed for the short-term impacts of the lockdown and it was one that could also be implemented for future estate planning.
Remote witnessing of wills
A change in legislation was required in the wake of Covid-19 and this made it possible to witness wills remotely. However, this still needed to be done in the full view of the will writer. Typically, this will be done on a video conference call with all parties present, together with a solicitor.
The introduction of software such as Skype, Zoom, Facetime and Teams has been key to the change in the law. The entire process can now be carried out remotely from start to finish.
Many of the rules that relate to wills and estate planning are covered by the Succession Act of 1965. Most importantly, this piece of legislation states that, for a will to be recognised, it must be put in writing and signed at the end by the testator. In the initial stage, the testator (the person who intends to write the will) would prepare a document listing their various wishes. That signature should be carried out in the presence of two witnesses.
Under new rulings, that still applies, but the process by which the witness for will signing takes over can be adjusted. Preparation of the will, under the guidance of a solicitor, can be undertaken by the individual. It will be signed and it can then be forwarded to the nominated witnesses for an initial read and approval. Once everyone is happy, the remote meeting can be set up.
During this meeting, the witnesses will sign their copies of the will in clear sight of the testator and the solicitor. The presence of the legal representative is crucial in order to confirm that the witnessing has been done in accordance with new legislation. Once all is complete, the will is confirmed and registered.
Advantages and disadvantages of remote will witnessing
There are pros and cons in regard to the new legislation governing remote witnesses for will signing. Obvious advantages might include:
In this age where we all lead busy lives, it’s simply more convenient for many of us to do things online and remotely. This is why the option of remote witnessing for will signing has been largely welcomed.
But there can be some downsides. Not everyone is tech-savvy and it requires a certain level of digital literacy in order to be able to set up and attend the remote meeting. This was especially difficult in times of Covid-19 when there were isolated individuals who couldn’t reach out for help with Skype, Zoom or whatever piece of software was being used.
This issue has extended post Covid-19 and it remains one of the biggest challenges for remote estate planning. Potentially, there can also be issues in the meeting itself because witnesses have to be seen to be signing the document, everything relies on technology. If the video link goes down, the process has to be halted and it may have to be postponed to a later date.
While there are some potential issues with remote witnessing of wills in Ireland, the addition of this piece of legislation has generally been a welcome one. It has certainly helped to streamline the process in many cases and that’s important in modern-day life.
It may also have led to an increase in the number of wills being made. If an individual dies intestate, i.e. they have not made a will, the process of dividing their assets becomes problematic. Remote witnessing has also helped in unprecedented times during the recent lockdowns.
The new procedures have made the role of the legal representatives that much more important. It’s imperative to ensure that those who are witnessing a document do so in clear sight of the testator and a solicitor needs to confirm this.
McGinley Solicitors LLP were established in 1988 and we now have over 35 years of experience in wills and estate planning. We have had to move with the times and are now able to provide a full remote service for anyone looking to write their will. Please call us or complete the online form and we will get back to you. We also have offices across Dublin and Donegal where we can carry out in-person meetings if required.