As Italy yesterday overtook China as the global epicentre of deaths owing to the spread of COVID-19, more and more limitations are imposed on our movements and our direct, physical interaction with others. In the average day to day life of the citizenry, the limitations on physical contact are difficult to bear, especially where we are unable to see loved ones for extended periods of time and, where we do come across friends and family while we continue to be out and about, when we are unable to express our affection the way we always have.
In the legal context, the limitation on physical interaction leads to other, more obscure but no less important, practical difficulties. The execution of deeds and other contracts are often, whether by operation of law or by agreement, required to be conducted in person and/or witnessed by counter signatories in order to attract the full force of the document's legally binding nature. In this context, as in so many others, technology has provided solutions in a variety, if not all, legal contexts whereby parties to an agreement or deed can execute documents electronically, wherever witnesses are not required. The law around electronic signatures is governed by the Electronic Identification and Trust Services Regulation, or 'eIDAS' for short. Despite our departure from the EU on 31 January 2020, eIDAS, like all other European law, continues to apply to Gibraltar. In order to complete an electronic signature with legal validity, it needs to be issued by a Qualified Trust Service Provider ('QTSP'). QTSPs are listed by European country and the UK's QTSPs can be found here.
In the context of the execution of a Will, a document which requires witnessing to be properly executed, physical interaction is unavoidable. Here at Hassans we have seen an increase of people looking to settle their affairs in this sense, their minds focused by the constant stream of news and social media messages about the spread of the virus, perhaps. In order to manage the process in the safest possible way whilst still offering the service to our clients, we are arranging to take initial instructions over the phone/FaceTime from the clients. Once instructed, we are corresponding principally by email and telephone. When arranging the signing of the Will we agree by email, we ask our clients to bring their own pen to the meeting. Once here, we ask clients and witnesses to maintain their distance and execute the document promptly. In the event that the testator of a Will is unable to attend at our offices, we are able to email a final document or hand deliver a printed version safely, with instructions on how to execute correctly and on who can act as witnesses. As a last resort, we are also able to attend clients at home, maintaining distance and all other precautions to maximise the safety of all involved.
The spread of COVID-19 has brought the nature and extent of our physical interaction into sharp focus and it may well be that lessons learnt in 2020 may reflect, not just in a change in the way we interact, but also in the way we think about the execution of documents, a process which may well be ready for a digital overhaul in an increasingly physically disconnected world. We may bemoan it, but it is a direct consequence of the availability of technology which, designed to bring us closer together, drives us further apart.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
