Will Requirements for Last Wills Remain as They Are? The ‘Physical Presence Requirement’ of Witnesses and Notaries in the Light of the COVID-19 Interim Measures and the EU Freedom of (Notarial) Services

Abstract

The COVID-19-crisis has exposed the shortcomings of formal requirements for legal acts which involve the physical presence of others. This is in particular true with regard to last wills which require the physical presence of a notary and/or witnesses, who have to authenticate and/or attest to the last will of the testator. In such cases, the physical presence requirement imposes an outright obstruction to passing a last will in times of COVID-19. Western countries have responded differently to COVID-19. In the civil-law jurisdictions where only notarial wills are offered, such as the Netherlands, the government has introduced interim measures allowing the testator (and witnesses, if required) to appear before the notary by audio-video technology, leading to authorized remote notarization and remote witnessing. The same has been done in common law jurisdictions where only witnessed wills are offered, including Australia, New Zealand and some states in the United States with regard to witnessing. The first part of this paper researches the different types of last wills and seeks to explain why countries have responded differently in this respect to COVID-19. The second part discusses the different solutions available and argues that solutions introducing audio-video technology as an alternative for physical presence are more favourable than other solutions. Remote authentication and remote witnessing leaves intact the existing will-types of the particular jurisdiction as they are, modernizing the presence requirement of the notary and/or the witnesses, while at the same time preserving legal certainty by anchoring these possibilities in legislation. Introducing audio-video technology in making last wills seems a logical step forward in the 21st century. Building on the two previous parts, the third part investigates a more fundamental issue relating to the physical presence requirement for notarial wills from a European Union free movement of services perspective. Discussing ECJ case law and two applicable directives, it shows that Member States are allowed to restrict the freedom of establishment of notaries and freedom to provide notarial services. These restrictions often lead to a domestic monopoly of notaries, where notaries appointed in the Member State offer exclusively notarial services under the legislation of that Member State, with the requirement that these notaries can only be established in and only offer their services that Member State. Combined with the physical presence requirement, these restrictions to the freedom of establishment and the freedom of services effectively force a testator desiring to make its last will before a notary to travel to the Member State of that notary. Even without COVID-19, it is the question whether this physical presence requirement unnecessarily restricts the freedom of services under art. 56 TFEU, as it deprives the notary and the testator of a rapid and direct technique of passing notarial wills. The possibility of remote authentication under interim legislation raises the question whether the physical presence requirement is objectively justified and proportionate to restrict the freedom of services.