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

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