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.
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.
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
 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.