Video Witnessing of Lasting Powers

A track record of perceptive innovation

Broomhead & Saul lead the field, both nationally and abroad, with its imaginative approach to overcoming the procedural obstacles faced by the elderly and those who are particularly vulnerable to COVID -19’s pernicious effects.

Distance Wills

On 1 May 2020 we set a new national precedent when we enabled a self-isolating client to execute his will in complete safety over the internet using commonly available video conferencing technology to manifest the witnesses’ presence.

On 29 July we set a new international precedent when we managed the first execution of a trans-jurisdictional will using the same video technology, this time for an English national living in Crete, over 2,400 miles away.

Distance Lasting Powers of Attorney

Our legal research and client services development team have also devised a novel procedure that enables clients residing in care home or who are hospitalised or self-isolating to execute a Lasting Power of Attorney during this pandemic without infringing the increasingly restrictive enhanced hygiene and health protection regimes.

Distance mental capacity assessments

We are in the process of devising a procedure for expert clinical psychological assessments under the Mental Capacity Act 2005.  This will not be appropriate for every client needing this service but we anticipate that will be beneficial in approximately 50% of cases.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that enables an individual (or donor) to appoint one or more persons (known as attorneys or donees) to make decisions on their behalf.

It only comes into effect if the donor loses the capacity to manage their own affairs.

There are two types of LPA:

  • A Property and Financial Affairs LPA
  • A Health and Welfare LPA.

It is entirely up to you whether you have one or both and we have the expertise and experience to advise you appropriately.

Completing a Lasting Power of Attorney at a distance

At Broomhead & Saul our clients best interests are our first concern.  We also insist that our staff take reasonable and proportionate steps to protect themselves (and indirectly their families) from any avoidable risk of exposure to the coronavirus.  This is why we have developed a new and completely safe way of remotely executing a Lasting Power of Attorney using video technology.

We adopt similar procedures with our Distance LPAs to those employed in our ground breaking Distance Wills service, which now have statutory approval.

This allows us to provide a highly bespoke and comprehensive private client service to elderly residents of care homes; to those convalescing in hospital or those who are especially at risk from Covid-19.  We are able to advise prepare and complete their wills and or their LPAs in just two video sessions.

Daring to act

Broomhead & Saul were the first firm in the country to execute a Distance Will for a self-isolating client on 1 May 2020 in defiance of the near uniform disapproval of the legal profession who erroneously insisted on the need for a witness to be physically present, COVID-19 notwithstanding.  Our published research exposed this misconception for what it was.

Our meticulous analysis of the The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 and the relevant case law establishes that Distance LPA’s are an entirely valid and proportionate lawful response to the Coronavirus pandemic.  At the time of writing, we are not aware of any other law firm that his had the confidence to research these statutory provisions and to devise this unique solution to the problem posed in this field of practice by COVID-19.

To make an appointment to discuss your needs, please contact:

Taunton Office: 01823 288121

Contact: Dr Nicholas Bevan

or email nicholas.bevan@broomhead-saul.co.uk

Outstanding Law Reform Success

Broomhead &Saul dared to differ, then led the way

 

The statutory formalities for wills

The law governing the formalities for making a valid will is prescribed by section 9 of the Wills Act 1837.  These formalities include a requirement that the testator and the testamentary witnesses should be in one another’s mutual ‘presence’, when the will is signed.  The provision is silent as to what is meant by ‘presence’.

The coronavirus conundrum

When the coronavirus pandemic forced the government to impose a lockdown in March 2020, the entire legal profession appeared to be united in believing that the term ‘presence’ requires a physical presence.  This presented significant difficulties for vulnerable people who needed to make a will in safety.

The Law Society’s Practice Guidance

The Law Society’s practice guidance between March and late July 2020 insists on the need for a witness’ physical presence.  Its advice in this respect was emphatic: ‘Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, …..’

When this accuracy of its advice was challenged by Broomhead & Saul and its associate practice, Solicitors Title LLP, in early June, the chair of the Law Society’s Wills and Equity Committee eventually replied in these dismissive terms:

‘… we do not share your views on section 9 of the Wills Act 1837. We do not provide specific responses where the reasons are long established and available in most legal textbooks on the subject’.

The only problem with this dressing-down being that the textbook commentaries were silent on this point and not a single judgment addressed this issue[1].

The Law Society’s guidance remained unaltered throughout the national emergency.  The unfortunate effect of which was to deny vulnerable members of the public the benefit a perfectly valid and completely safe way of remotely executed their wills.

The source of the confusion

Our independent research reveals that the source of this misconception appears to originate from some uncharacteristically sloppy research undertaken by the Law Commission in 2017.  In its Consultation Report: Making a Will, it had this to say: .

6.32 For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight. That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.26 [Emphasis added]

The report does not explain the perceived ‘difficulties’ in establishing a ‘line of sight’ with video conferencing technology.

As for its assertion a physical presence has been held to be an essential requirement, that turns out to be completely untrue.  At footnote, 26, the report cites a case from 1948 (In the goods of Chalcraft) that has nothing to do with the physical presence or absence of the witnesses (nor the testator for that matter) because the all parties were present throughout.

The same error is repeated elsewhere in the report.  At 5.26 and 6.32, similar misattributed case authorities are wrongly claimed to support the need for a physical presence and in each case the parties were physically present.

The simple truth of the matter that in 343 years jurisprudence on this point not a single judge has decided that the term ‘presence’ insists on a witness’ bodily or physical proximity.  Dr Nicholas Bevan, senior associate at both Broomhead & Saul and Solicitors Title, shared these concerns with the wider profession in his New Law Journal article: Where there’s a will; there’s a way on 5 June.

A new orthodoxy

Such is the high esteem in which the Law Commission is held within the legal community and beyond that no one else appears to have questioned its assessment, still less double check its erroneous citations.  Our review of every official commentator and special interest group revealed that the Law Commission’s erroneous view was universally and unquestioningly adopted, almost as an article of faith.

The legal profession takes a wrong turn

In March 2020 the Law Society and several other representative bodies approached the Justice Secretary seeking a legislative intervention to amend section 9 of the 1837 Act to relax the statutory safeguards against fraud, to make it easier for the elderly and vulnerable to make their wills.

According to the Law Society’s own public statements, it had sought the presence of witnesses to be dispensed with for vulnerable categories of testator, a measure which, in our opinion, would have exposed these people to an unacceptable risk of fraudulent substitution and undue influence.

Deadlock

Fortunately, the Justice Secretary rejected these proposals on 29 April, and rightly so.  No further proposals were made and it soon became clear that any dialogue had concluded.

See the Distance Wills Reform Timeline

Solicitors Title challenge the consensus

In the last week of April Broomhead & Saul was approached by a self-isolating client who wanted to make a will without risking any exposure to COVID-19 (either from direct physical proximity of witnesses or indirectly from some inadvertent contact with a contaminated objected).  This led us to revisit section 9 of the Wills Act 1837.

Further detailed research indicated that there was no basis in law for the Law Society’s prohibition of video witnessing.  Furthermore, it revealed that not only was this technically possible but it was also capable of enhancing the legislative objective of fraud prevention: principally due to its capacity to provide a permanent audio visual recording of the entire proceedings.

At Broomhead & Saul and Solicitors Title we concluded that, properly managed, video witnessing was capable of meeting the ‘line of sight’ requirement indicated by the case authorities and thus of conforming to section 9 of the 1837 Act.

Broomhead & Saul and Solicitors Title call for official clarification and guidance

On 3 June 2020 we wrote to the Justice Secretary to explain our findings and to commend the benefits of video witnessing from fraud prevention and health and safety perspectives.  We emphasised the importance stressed by the case authorities on a witness’ ‘presence’ affording a ‘line of sight’ and the absence of any insistence on a physical presence.

We urged the government to intervene promptly by arranging for good practice guidance to be issued on video witnessing.   We shared our extensive research in Dr Nicholas Bevan’s paper, Why video witnessing is valid.

The government’s initial response

The Advocate General, Lord Keen of Elie QC, was deputised to reply on the government’s behalf.  In his letter of 19 June, he comments specifically on my contention that the term ‘presence’ in section 9 of the Wills Act 1837 does not need to be amended because it is already capable of embracing live streaming video technology to manifest the ‘line of sight’ mandated by the case authorities, he wrote this:

‘It is an argument with force, set out in impressively comprehensive terms in Dr Bevan’s paper, but the fact remains that we currently have no explicit judicial authority on whether the witnessing requirements of the 1837 Act can legally be satisfied by means of video-link technologies.’

An official announcement was promised ‘very soon’.

The government’s official response

On 25 July the government published its Guidance on making wills using video-conferencing, which Solicitors Title had been a lone voice in calling for.

This guidance closely reflects the proposals and reasoning advanced in our letter and paper.

The Guidance opens by announcing the government’s intentions of amending the 1837 Act in September  ‘… to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.’  Further on it declares: ‘None of the existing relevant requirements [in the Wills Act 1837] are changed by the new law.’

It then acknowledges that the existing law requires ‘a clear line of sight’ before proceeding to provide best practice advice on how this can be achieved using video technology.

The Guidance is not dependant on the legislation for its legal effect as it is clearly intended to have immediate as well as retrospective effect.  This is highly significant: as the inescapable implication of this is that the government must accept that video witnessing is already a valid way of conforming with to section 9 of the 1837 Act as it adheres to the ‘line of sight’ principle outlined in our paper  (Otherwise, the guidance on video wills would constitute an ultra vires act, since [as our Prime Minister discovered to his cost recently] the Executive does not have the constitutional power to amend primary legislation, because that is Parliament’s prerogative).

On 4 September the government introduced The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 which gives formal effect to this reform for a two year period backdated to 31 January 2020.

The legislation will have retrospective effect for an extendable period of two years from 31 January 2020; after which time and unless extended, the amended 1837 Act will henceforth expressly require a witness’ physical presence.  It is to be hoped, that once the legal profession gets used to offering this beneficial Covid-19 safe procedure, it will gain a wider acceptance that will embolden the government to remove the time limit.

A campaign success for Broomhead & Saul and its associate, Solicitors Title LLP

When all is said and done, the official Guidance has endorsed the most substantial technical and procedural innovation to the way wills are executed for 343 years.  This will benefit thousands of elderly and vulnerable people.

 

Distance Wills Reform Timeline

Click here to access

 

 

 

 

 

[1] Presumably because no one had conceived of the notion of using video conferencing technology to execute a will prior to the onset of the pandemic.

Macmillan coffee morning

Macmillan coffee morning

Broomhead & Saul are supporting the national charity, Macmillan Cancer Support, by participating in the world’s biggest coffee morning event this coming Thursday 17 September 2020.

Mel Dodds and her colleagues from our Ilminster office will be running a coffee and cakes stall at Ilminster’s charming historic market building from 9 am.

Mel promises some delicious treats for our coffee morning next Thursday. There will be lemon drizzle cake, chocolate brownies, flapjacks, to name but a few!

We look forward to seeing you!

The need has never been greater

Cancer research and care is in the midst of a funding crisis due to the knock on effects of Covid-19.

If you are unable to join us for our Coffee Morning next week but would like to make a donation to Macmillan’s wonderful cause, then please follow the link below.

https://thyg.uk/BUU004456565

Broomhead & Saul’s successful reform campaign

We all need to be resilient and innovative in the face of this pandemic.

Broomhead & Saul recently led a highly successful snap reform campaign to enable those particularly vulnerable to Covid-19 to use video technology to witness their wills.  In doing so they challenged the well-entrenched opposition of the legal profession, including the Law Commission, before appealing direct to the government.  The government then issued Guidance in July based on our research and recommendations.  More recently, it has laid The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 before Parliament.  This gives formal effect to this for a two year period backdated to 31 January 2020.

Law Reform Success on Video Witnessing of Wills

Broomhead & Saul’s solo snap law reform campaign is an outstanding success.

The statutory formalities for wills

The law governing the formalities for making a valid will is prescribed by section 9 of the Wills Act 1837.  These formalities include a requirement that the testator and the testamentary witnesses should be in one another’s mutual ‘presence’, when the will is signed.  The provision is silent as to what is meant by ‘presence’.

Lawyers up and down the country have long been accustomed to a testamentary witness’ attendance in person at a will signing and with good reason: in a pre-internet age, how else could a witness claim to have seen and heard the events they are required to attest to?

The coronavirus conundrum

When the coronavirus pandemic forced the government to impose a lockdown in March 2020, the entire legal profession appeared to be united in believing that the term ‘presence’ requires a physical presence.  This caused significant difficulties for the over 50s and others who are particularly vulnerable to Covid-19.

The Law Society’s Practice Guidance

The Law Society’s practice guidance between March and late July 2020 insisted on the need for a witness’ physical presence, without explaining why.

A client in need

In late April, we were contacted by self-isolating client, 150 miles away, who needed to make his will during the lockdown.  We were determined to help him.

Daring to differ

At Broomhead & Saul when our clients’ civil rights are curtailed by some obstacle, our habit is not to ask how high they should jump but to ask why the obstacle is there in the first place.

Ground breaking research

Dr Nicholas Bevan, senior associate solicitor (who is also retained by our associate practice Solicitors Title LLP) researched 343 years of case law and statutory provisions dating back to Charles II’s reign.  This exposed serious flaws in a highly influential report on ‘Making wills’, published by the Law Commission in 2017.  Our research revealed that the Law Commission had wrongly cited three cases as purportedly supporting the establishment view that the term ‘presence’ insists on a witness’ physical proximity, when they established no such thing.  Our research identified that the case authorities propose a more practical principle: namely that a ‘presence’ should afford a ‘clear line of sight’.

Snap reform campaign

Dr Bevan later wrote up and published our research in a number of legal journals.  No one has challenged our research findings.  When the Law Society rejected our entreaties, we approached the Justice Secretary recommending official Guidance to sanction video witnessing of wills.  Official Guidance approving of this practice was duly published with retrospective effect on 25 July 2020. It is based on our research.

The Wills Act 1837 (Electronic Communications) (Amendment)(Coronavirus) Order 2020

The government’s has now augmented its Guidance with legislation, just laid, which retrospectively sanctions video witnessing of wills during this pandemic.

Daring to act

Acting on our research, we were the first firm in England to execute a distance will using video technology on 1 May 2020.  On 29 July we created a new international precedent by executing the first cross border distance will for a UK national resident in Crete, without the client needing to leave the comfort and safety of her home 2,400 miles away.

Leading the field in private client care

Broomhead & Saul (in association with Solicitors Title LLP) are responsible for bringing about the most significant reform to the formalities for executing wills since 1677.

National and International distance will service

At Broomhead & Saul we are proud to announce the UK’s first national and international distance wills service.

If you are over 50 or are otherwise particularly vulnerable to COVID-19’s deadly effects and you are concerned either by the risks of travelling to see a solicitor or worried by the prospect of compromising your social distancing or self-isolation by inviting third parties to witness the signing of your will, then we are here to help.

Contact: Dr Nicholas Bevan at 01823 288121 or at Nicholas.bevan@broomhead-saul.co.uk