The prestigious New Law Journal, has just published another article by Dr Bevan. In ‘The video will execution regime: a half measure?, 30 October 2020, Nicholas argues that the Law Society missed a unique opportunity to persuade the government to assign to its members the role of administering the execution of wills from a distance, using video technology.
This would have enabled people who are particularly vulnerable to Covid-19, such as the elderly, to instruct their solicitor (over the internet) to sign their will in their name and then for the solicitor’s staff to witness and attest to this all in one single session, all managed from the solicitor’s office premises with the clients remaining in the safety of their homes.
In the article, Nicholas explains how the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 only explicitly sanctions the video witnessing of wills for two years from 31 January 2020. This secondary legislation was introduced in direct response to Dr Bevan’s initiative.
The limited scope of the Wills Act Order
Unfortunately, the Order is limited in its scope. It’s provisions necessitate at least two separate video sessions: the first being to witness the will signing; the second, to enable the testator to observe the witnesses’ attestation.
If the witnesses need to social-distance from one another, then the testator’s signed will needs to be posted out to each witness separately, with the testator being required to remotely attend both sessions. The result is an unnecessarily cumbrous, time consuming and costly exercise with the following attendant risks:(i) of the will being lost, delayed or damaged in the post (in up to six separate postings) and/or (ii) the witnesses learning of the dispositions and divulging this highly confidential information to third parties.
These limitations were unnecessary.
In several other common law jurisdictions, such as Canada and Australia, the legal professions there successfully persuaded their government to sanction the entire process of executing a will, remotely over the internet. In Ontario, for example, this is made conditional it being managed by legally qualified professionals.
A lost opportunity
Unfortunately, according to Nicholas, the Law Society in England misinformed both itself and its members of the correct legal position by insisting in its practice guidance that video witnessing was not a valid means of manifesting a witness’ presence, under the Wills Act. It failed to explain its reasons, when invited to do so. However, Nicholas’ own research revealed that the Law Society’s stance was badly misconceived. His research also indicated that there were sound grounds to believe that the use of video technology in this context was fully consistent with well established case law; a point which was later accepted by Lord Keen QC, as Advocate General, when responding to Nicholas’ paper on 19 June.
Unfortunately, the Law Society compounded its error, by first asking the government to dispense with the witnessing requirements altogether (just when the vulnerable and elderly appeared to be most at risk of undue influence or fraud, due to the need to self-isolate) and after its proposals were rejected, it appears to have asked the government to introduce inappropriate guidance to accompany the Wills Act Order’s provisions; these diminish its effectiveness.
Two alternative basis’s for video witnessing
Nicholas concludes by noting that the common law ‘clear line of sight’ principle (identified in Nicholas’ detailed research paper of 3 June 2020 and which was adopted as a central tenet by the government in its Guidance) is capable of accommodating a holistic online video wills service equivalent in scope to that enjoyed in the common law jurisdictions mentioned above.
Consequently, there are two concurrent video will execution regimes in force at present: a broader version that is informed by the well-established common law principles Dr Bevan identified but which remains uncertain as they have yet to be tested by a court, the other rendered temporarily explicit by the Order.