A global pandemic presents all sorts of challenges. Ensuring that wills and other legal documents are correctly executed while at the same time observing social distancing protocols is one area of concern. At ParrisWhittaker, a leading law firm in the Bahamas, we advise on all aspects of wills and estates. Against the backdrop of government restrictions introduced in response to Covid19, we continue to provide clients with the peace of mind that:
Their wills, powers of attorney and other key legal instruments will be correctly executed; and
Any possibility that the documents might be challenged is minimised.
How Do I Sign A Will?
Your will is a unique legal document. As the testator (the person making the will) you want it to effectively speak for you after your death. It’s crucial then that there should be no suggestions of undue influence or lack of understanding on your part when you come to sign it. If there are, your final wishes about who should inherit your assets could be frustrated. This is why the rules for signing and witnessing a will are so strict. They are as follows:
The will must be in writing and signed by the testator
It must appear that the testator intended by his signature to make the will take effect by that signature
The signature must be witnessed by at least two witnesses
Witnesses must be present at the same time
A witness can’t also be a beneficiary under the will (or the spouse of a beneficiary); and
Each witness must attest and sign the will or acknowledge the signature in the presence of the testator.
A failure to observe all of these formalities may lead to your will being challenged or declared invalid. As we’ve said the net result of that is that your estate might not be divided up in the way that you want.
How Do I Get My Will Witnessed During The Covid Pandemic?
In 2020 the Government of the Bahamas – like almost every other country – introduced social distancing protocols. These new rules meant getting a will witnessed in accordance with the requirements we’ve set out above was much more difficult than before.
How to get two independent witnesses close enough to the testator without firstly breaching the social distancing rules and secondly introducing a risk of transmission of the Covid19 virus?
It was no longer a question of simply getting the testator and witnesses together in a room to sign the document.
Creative solutions to this issue included witnesses watching the testator sign the will through a window, the testator then passing the will to the witnesses and then watching them sign it.
Can My will Be Witnessed By Video
In the Bahamas there has been no change to the law to enable you to witness a will via Zoom or similar technology. Contrast this with England where the pandemic has resulted in an emergency change to The Wills Act, enabling testators and witnesses to execute wills remotely (through Zoom or other video conferencing apps). The new legislation in England still requires the testator to sign his or her will in the presence of two witnesses – but ‘presence’ now includes being together on a video call.
The inclusion of video conferencing as a way to witness a will was welcomed by many as a practical and novel way to deal with one of the problems raised by Covid. Many legal commentators however think wills witnessed this way bring their own risk of fraud and undue influence. (For example, because there’s no legal advisor present to assess the situation.) It’s because of these concerns that there’s a growing consensus that virtual witnessing should really only be carried out as a last resort where no other acceptable ways of getting the will witnessed are possible.
Comment
A failure to follow the rules around execution and witnessing can invalidate a will. When an event like Covid19 makes adherence to the rules more testing, it’s perhaps sensible to avoid DIY wills and to get specialist legal advice. Virtual witnessing might not be possible in the Bahamas right now but the solutions we’ve discussed such as witnessing a will through a window can be effective – so long as they’re carried out in a way that meets the criteria set out in the Bahamas Wills Act, 2002.
Contact Us
Schedule a meeting with a lawyer at ParrisWhittaker today to discuss how you can make a legally watertight will while observing all relevant Covid19 restrictions.
