National emergency situations such as the Covid-19 pandemic call into question whether legal amendments should be introduced to modernise the law in various areas. One of such areas is the manner of execution of wills and in particular the issue of whether the remote witnessing of wills and other means of execution shall be permitted in emergency situations in light of the recent quarantine and other restrictions imposed by the Cyprus government as a means of combating the spread of the pandemic.
The recent social distancing measures have created practical barriers in the proper execution of valid wills as per the formal requirements of the applicable Wills and Succession Law, CAP. 195 (“the Law”). Under section 23 of the Law no will is valid unless it is in writing and executed in the following way:
- It is signed at the bottom or at its end by the testator, or by another acting as a testator, in his presence and by his direction; and
- The signature is affixed or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness attests and signs the will or acknowledges their signature in the presence of the testator and in the presence of each other, without any form of attestation being necessary; and
- If the will consists of more than one page, every page shall be signed or initialled by or on behalf of the testator and the witnesses.
Other requirements for the execution of a valid will, include that it shall be executed without any form of undue influence being exercised on the testator (section 29 of the Law), that the testator shall have knowledge of the content of the will and that he shall be of over 18 years of age and of testamentary capacity (sound and disposing mind and memory) (section 22 of the Law). Moreover, section 24 of the Law provides that the witnesses must be over 18 years of age and of sound mind, being persons capable of affixing their signatures on the document. It is noted that any mistakes or omissions in the content of a will may be corrected by order of the Court following an application in this respect by any interested party pursuant to the power conferred on Courts on the basis of section 23A of the Law.
As of the above, the formal requirements for the proper execution and attestation of wills are particularly strict with limited room for deviation. In particular, as English case law has established, the ‘’presence’’ of the witnesses shall strictly mean visual presence. In the case Brown v Skirrow  P.3 it was held that the term “presence” of witnesses, met in the Wills Act 1837 applicable in England, was interpreted to mean visual presence so that the witnesses are able to claim with absolute certainty that the testator has signed the will. In Re Clarke (judgment of the Court of Protection dated 19/9/2011), where the witness and the testator were in in two different rooms separated by a glass door, it was held that, although separated, there was a clear line of sight through the glass door and thus the requirement for visual presence had been satisfied.
An approach that may prove of assistance in emergency situations such as the present and other potential dire situations is the introduction of legislation giving the green light to the non-witnessing of wills if certain requirements are met. Such is the case with holographic wills, that is to say wills which are entirely in the testator’s handwriting which do not require the presence of witnesses. Such approach is seen as accepted in various states and provinces in the USA and Canada, however witnessing or notarisation requirements for purposes of ascertaining that the document indeed reflects the testator’s free will shall still be in place.
The power of the Courts to exercise their discretion in finding that a will is valid even when the formal requirements of execution are not met is conferred by legislation in other jurisdictions. In Australia, for example, under Section 18 of Queensland’s Succession Act 1981, Courts have the power to dispense with the requirements for execution, alteration or revocation of wills if certain requirements are met, provided that the Court is satisfied that a document or part of a document expresses the deceased’s testamentary intentions. In the recent example of the Australian case Re Nichol; Nichol v Nichol & Anor  QSC 220 dated 9/10/2017, the Queensland Supreme Court accepted an unsent text message by a man shortly before he died as a valid will. Although this process did not comply with the formal requirements of the applicable Australian law, the Court was satisfied that it captured the man’s testamentary intentions as it found that on the basis of the facts of the case, the deceased had the intention that the draft text message be discovered when his body would be found. Similar legislative provisions apply in New Zealand under Section 14 of the Wills Act 2007 and in Hong Kong under section 5(2) of the Wills Ordinance. Therefore, the applicable Cyprus legislation could be amended so that circumstantial evidence is accepted by Courts when considering whether a will was properly drafted or subsequently amended.
In addition, as visual presence is a legal prerequisite for the witnessing of wills in Cyprus, as explained above, legislative amendment is potentially required in order to permit remote witnessing through, for example, videoconferencing technology as a means of embracing the use of technology in the execution of wills.
Of particular interest is the assessment of the potential of permitting the execution of electronic wills (e-wills), a development that will be particularly useful in emergency situations, as they will facilitate the process of making a will and will enable people to engage in such process in a more straightforward manner in due course. The recent development of the passing of the Electronic Wills Act in the state of Florida, USA which will be put into effect on 1st July 2020 enabling the electronic witnessing, signing and notarisation of wills and other estate planning documents can be seen as a leading example. The execution of electronic wills through videoconferencing with the ability to record the call, sufficiently dealing with potential claims for undue influence or lack of knowledge on behalf of the testator, addresses the necessity for evidential certainty in electronic execution of documentation of such nature.
Commentators could suggest that electronic documents are always prone to cyber security issues due to the potential for cyber-attacks and cyber-fraud which may put at risk the individuals’ personal information and data, however such issues may be sufficiently addressed with additional requirements and precautionary measures such as proper storing by qualified custodians, potentially including law firms and Court Registries.
Amendments to the legislation or exceptions to the Law need to be introduced in order to enable people to make wills even in emergency situations. At the same time, it is important for the legislators to become less sceptical as regards the use of technology to facilitate the process of executing a will, especially in crisis situations. However, appropriate safeguards must be in place so that the validity of a will is not disputed on grounds of improper execution or attestation.
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