With COVID-19 and its variants now a leading cause of death in the United States and around the world, many feel a new urgency to finalize their estate plans. At the same time, health officials, in their effort to curb the rate of infection with the virus that causes COVID-19, discourage congregating in poorly ventilated indoor spaces. This guidance makes everyday transactions more difficult to complete. Marriage ceremonies, closing ceremonies, and notarizations can feel out of reach. Certainly, will execution ceremonies are now more difficult to conduct. The threat posed by the pandemic and the necessary response to it have made people more eager to finalize their estate plans and simultaneously made achieving that goal elusive at best.
The inability of attorneys to help testators execute their wills in the traditional manner—around a conference table in an office with the help of pre-arranged witnesses—has driven some eager individuals to resort to do-it-yourself will execution ceremonies while masked and observing social distancing guidelines. These ceremonies are conducted with an attorney’s written guidance or by following the instructions found on a website or contained in a kit purchased at a neighborhood drugstore. Others are putting off estate planning for another day. The problems inherent in either approach are well known to estate planners. Just as putting off medical care can be disastrous, postponed or botched estate planning can have negative consequences. These consequences can range from one’s assets being distributed to unintended beneficiaries to lost opportunities to name a guardian for one’s children or a decision maker in the event of one’s own incapacity. Recognizing the dilemma, on September 4, 2020, the British Lord Chancellor issued an executive order temporarily amending the Wills Act by defining the presence of witnesses to include “presence by means of videoconference or other visual transmission.” The amendment applies to wills executed between January 31, 2020, and January 31, 2022. The executive order is similar to the many legislative enactments and executive orders across the United States that have created temporary exceptions to will execution rules as a way of lessening the impact of the coronavirus’s disruption of everyday life.