• Cavell Leitch

COVID -19 - Immediate Modification Orders

Amanda Fitzgibbon - Relationships


Maria Young - Trusts and Estates


In light of Covid 19 the Government has recently made two Immediate Modification Orders which you should be aware of.


As we are all aware, we are currently operating under an Epidemic Notice which gives the Government powers to temporarily amend certain laws. An Immediate Modification Order (IMO) can be made to pieces of legislation to provide a temporary change. The IMO remains in place only whilst the Epidemic Notice is in force.


Why is this necessary ?



Well for the simple reason that, while operating under level 4 and even if a shift is made to level 3, some requirements of the law simply cannot be abided by. Two areas where temporary changes have been made are in the signing of Wills and in signing an Oath, declaration or affirmation. In both these cases the physical presence of the witnessing party was necessary. This cannot be complied with currently. The changes that have been made by virtue of the IMO regulate that witnessing can now be done via audio visual link.


Epidemic Preparedness – Immediate Modification Order 2020 (Wills Act 2007 – Signing and Witnessing of Wills)


Wills


It is vital that under lockdown conditions whether people are concerned about the virus, simply want to get their affairs in order or to make changes, where a person needs to make a Will that they are still able to do so. And importantly that such Wills are still valid.


Without the IMO, for a Will to be valid it needed to be signed by the will maker and witnessed by two people who were present with the will maker. Of course under level 4 and still possibly under level 3, this would not always be possible. Take for instance an adult who lives alone, or an adult who only lives with one other party. Whilst it is acknowledged that documents that do not always comply can be held to be a valid “Will” – this modification order gives people the opportunity to still make a Will with certainty during this time.


The change now makes it an option to be able to witness a Will via audio visual link instead of being physically present; vehicles such as Zoom, Skype, Facetime and Messenger can be used.


Practically this will mean:

  • The person making the Will can appear on Audio Visual Link and sign the Will (with the two witnesses also present via audio visual link) ;

  • A person who is signing on the will-maker’s behalf (pursuant to section 11(3)(b)), can sign in front of the will-maker by audio-visual link from another place;

  • Witnesses can witness the will-maker sign a copy of the document by audio-visual link;

  • Witnesses can sign a copy of the will in front of the will-maker by audio-visual link;

  • All people signing a copy of the will must make it clear on the copy that it is signed this way because an epidemic notice is in force;

  • Photographs or scans of the signed copies must be sent as soon as practical to a person who has been chosen to hold the document and all photographs or scans of signed copies of the will.

  • If a lawyer or trust company has been involved in preparing and witnessing your will, they can hold the document and all photographs or scans of signed copies of the will.


Will it be Valid following the Epidemic Notice being removed? Yes it will be and will stay in place unless you choose to make a further Will at a later date and revoke the one made when the IMO was in place.


Epidemic Preparedness – Immediate Modification Order 2020 (Oaths and Declarations Act 1957)


Oaths, Affirmations and Declarations


Solemn promises to tell the truth are needed in many areas that touch on people’s lives. Specifically in court proceedings and it is important that people can continue to be able to file proceedings and have the ability to comply with a requirement that relies on an Oath , Affirmation or Declaration. As noted above before the Epidemic Notice was in place it was not an issue to be in the physical presence of an authorised person (Justice of the Peace, Lawyer or Deputy Registrar) to sign an Oath, Affirmation or Declaration but now this is not possible.


The IMO change provides that for now there are no requirements for the person taking the Oath, Affirmation or Declaration to be in the physical presence of those making them. Additionally the person taking the Oath, Affirmation and Declaration does not need to sign the same document as the personal making it.


This means that an Oath, Affirmation or Declaration can now be made via an audio visual vehicle such as, Zoom, Skype, Facetime, Messenger.


Other formal requirements will still be in place. This means that the person taking the Oath, Affirmation or Declaration will:

  • Still need to establish identity, photo identification will be an important tool;

  • Make sure that the document has been read and that the contents of the documents have been understood and are correct to the person signing– this may mean reading the entire document over;

  • If exhibits are attached that they are the exhibits referred to in the documents;

  • Document will need to be signed during the Audio link

  • The document signed then needs to immediately be sent to the person taking the Oath, Affirmation or Declaration to then sign.

  • The document can be scanned, photographed and sent electronically or sent via post or courier where it allows.


It would be prudent for the person taking the Oath, Affirmation or Declaration to note that it was done this way on the document itself.


Another change in this area has meant that entities which receive statutory declarations can now authorise their staff to take statutory declarations (this would be instead of a JP, lawyer or deputy registrar). The staff would need to be trained to take the statutory declaration.


The change also states that audio link can also be utilised (Telephone) – this recognises that not all people have access to technology that allows an audio visual link.


It should be noted that if audio link is being utilised some extra steps may need to be taken to comply with the requirements set out above.


Cost


This is a question that should be asked immediately of the person taking the Oath , Affirmation or Declaration. A lawyer certainly has a duty to tell you the cost and they can only charge you a fair and reasonable fee.


If you would like to discuss any of the above in relation to your individual situation please contact a member of our Relationships team or Trusts and Estates team.

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