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

Where there’s a will there’s a way

Broomhead & Saul was the first law firm in the country to appreciate the vital health and safety benefits of live-streaming video technology for its clients during the ongoing coronavirus pandemic.

We also set a new legal precedent on 1 May this year when, acting in association with Solicitors Title LLP, we supervised the first remotely executed video will for a client who was self-isolating 150 miles away in Surrey, from our Taunton office.  This spared our client from any risk of being exposed to the coronavirus as well as allowing him to complete his will in the comfort and privacy of his home.

Dr Nicholas Bevan, senior associate solicitor, shared his ground breaking research with the government along with his proposals for an urgent intervention to encourage other lawyers to do the same.

Responding on the government’s behalf on 19 June this year, Lord Keen of Elie QC complimented our analysis, saying ‘It is an argument with force, set out in impressively comprehensive terms in Dr Bevan’s paper….I would like to thank him again for his detailed insights on the subject.’

On 25 July, the Government issued a press notice and guidance indicating that emergency legislation would be introduced in September.  The Government’s proposals are based on Dr Bevan’s research.

Writing in this week’s issue of the prestigious New Law Journal, in Where there’s a will there’s a way Dr Bevan shares the further clarification provided in Lord Keen QC’s most recent letter of 4 August on the Government’s proposed wills reform.  Unfortunately, according to research released today by Today’s Wills & Probate, most law firms feel unequal to the task of executing wills using video technology.

Broomhead & Saul, in partnership with Solicitors Title LLP, lead the will writing legal sector with this innovative nationwide private client service.  We welcome enquiries from members of the public up and down the country.  Our video witnessing will writing service has been devised to help anyone seeking to make a will in safety during the coronavirus pandemic.

For further details, please contact: Dr Nicholas Bevan on 01823 288121.

Broomhead & Saul Leads the Way

Broomhead & Saul and its affiliate Solicitors Title LLP have persuaded the Justice Secretary to take decisive action to help self-isolating testators make their wills in safety.

When it became clear that the multiparty discussions with the Ministry of Justice had stalled,  Dr Bevan, who is based at Broomhead & Saul’s Taunton office, submitted a detailed paper, Why Video Witnessing Is Valid, in which he argued the case for validating the use of live streaming video technology to witness will makers signing their wills remotely. Hitherto, the entire legal profession was united in believing that a physical presence was an essential requirement. The Government’s official guidance adopts the ‘line of sight’ principle advocated in Dr Bevan paper. Legislation permitting the video witnessing of wills is expected to be introduced in September and given retrospective effect to 31 January this year. This represents the single most radical change to will writing services since 1677.

Coronavirus – Working Together

As the Prime Minister has said, we have not known a situation like this in peacetime.  Our objectives, like with many other businesses, are to ensure the safely and wellbeing of our staff, to support our clients and to ensure, as much as we can, that any disruption to the availability of our services is minimised.  We have therefore considered whether we can deliver services is a more novel way, if the need arises or in particular cases and we are keeping this under review.

Our offices are open and we will aim to ensure minimal disruption to our service levels, but please bear in mind that all businesses are having to manage this fast-moving situation, keeping developments and how they respond to those developments under constant review.  However, for our clients, referrers and contacts, we can confirm the following:

  • We have full remote working capability and a secure IT infrastructure, meaning that we can continue to operate even if our offices needed to close (at present, all of our offices are open as usual)
  • Our compliance team have reviewed critical deadlines and areas of work that cannot be disrupted, if at all possible, to ensure continuity in these respects
  • We have considered any risks to our business and are taking steps to mitigate these
  • We have deployed updated guidance on hand washing and good hygiene and are taking practical steps to avoid unnecessary contact (for example shaking hands) and this is ongoing
  • We have already moved some meetings to alternative methods of communication; for example, phone, video conferencing/Zoom/Skype

This situation may inevitably lead to consideration of advice that businesses and others need, or to look at putting various things in place for your family and therefore, as always, please do get in touch with your usual contact at Broomhead & Saul, to see what we can do to help.

The Partners and staff at Broomhead & Saul

Supporting Ilminster Business – World Cancer Day

To mark World Cancer Day 2020, Ilminster law firm Broomhead & Saul is delighted to support fellow Ilminster business Harper, Dolman & West Insurance, located opposite our own offices in the Somerset town, by donating £1 for every year that we have been trading, towards Paul Mullins’ half-marathon challenge.

Paul, who is a key member of HDW’s insurance team decided to take on the challenge to support the fundraising effort being undertaken across Somerset for a new cancer screening and support unit. Via the Yeovil Hospital Charity, the aim is to raise the £2 million required to build a dedicated Breast Cancer Unit at Yeovil District Hospital.

Many of both firms’ clients and contacts will have links to Yeovil and may well use or one day require the services of the hospital and therefore we are delighted to pledge £125 towards Paul’s challenge.

Broomhead & Saul, established since 1895, is a legacy partner with Cancer Research UK, actively participating in the annual free wills scheme – the firm has only just, in fact, been recognised for the value of legacies raised.

Harper, Dolman & West has been proving insurance services across Somerset for over 40 years, from their office based in the Somerset town.

“I ONLY NEED TO MAKE A SIMPLE WILL SO WHY INCUR THE EXPENSE OF USING A SOLICITOR?”

How do you know your Will is simple?

What you want to achieve may be simple and clear in your own mind, but making a valid Will which results in the outcome you intend may not be so simple.

There are many traps for the unwary and you run the risk of falling into them if you do not know they are there.

A Will is one of the most important documents you will ever make and a “simple Will” may have unintended consequences given to your individual family and financial circumstances to say nothing of changes in the law which affect future inheritance rights and taxation. Your family could be faced with problems and challenges which are both stressful and expensive to resolve at what is a very difficult time to the detriment of their intended inheritance.

As long-established solicitors, we take pride in working with you to consider how best to achieve your aims given your individual circumstances and will advise you of possible pitfalls and how to avoid them. Employing an expert now will give you valuable peace of mind for the future.

“I DON’T NEED A WILL ANYWAY”

How do you know?

You cannot assume that the rules about who inherits what if there is no Will and who can be authorised to deal with your assets will match your wishes.

The administration of your estate could in any event prove to be more time consuming, complex and expensive where there is no Will. Executors appointed under a valid Will can have authority to act immediately to deal with urgent matters relating to your estate before authority is granted to them by the Court. Without a Will there is no-one who has that authority until such an appointment is made. Again this could cause difficulties for your loved ones which could so easily be avoided by making a valid Will.

How much will it cost?

What price peace of mind……?

Our fees relate to your individual needs and wishes and whether your Will really is simple – our charges start at £160.00 plus VAT for a single Will and £245.00 plus VAT for 2 similar Wills which mirror each other but why not contact us to find out more? We will be pleased to discuss it with you without obligation and provide details of the likely fees involved before we proceed.

Additional Benefits

Our fees include free storage of your Will in our Strong Room and registration free of charge (normally costing £30) as to the location of your Will on the Certainty National Database, as recommended by our professional body, The Law Society. Please be assured that the contents of your Will are not registered on the database and information about it can only be given by us to your loved ones after your death. Registration assists in ensuring your most up to date Will is located promptly and not overlooked and in preventing the mistake of an older Will or copy being found and relied upon. A check of the register saves costs and delay which might otherwise arise.

The Broomhead & Saul Team Successfully Complete The Moonraker Challenge 2014

Moon

The Broomhead & Saul Team of Paul Sykes, Julia Clegg, Michael Brierley (works for Hanne & Co) and Paul Brierley successfully completed the Moonraker Challenge 2014.

The firm raised over £200 for the cause which contributed to a grand total of £10,000!

Congratulations to everyone who took part and made the event so successful for such a wonderful cause.

The Broomhead & Saul team are already looking forward to next years challenge!