Broomhead & Saul and its associated practice, Solicitors Title LLP lead the field, nationally, by developing the first Video Wills Service and in their extensive use of online video conferencing.
What is a Video Will?
A Video Will (also known as a Distance or Remote Will) provides a safer and more convenient way of complying with the formalities for signing and witnessing your Will in full conformity with the Wills Act 1837.
A Video Will enables you to sign your Will in the safety and privacy of your home whilst your solicitors arrange for the witnessing formalities to be undertaken remotely from the offices using video conferencing technology.
Necessity, the mother of invention
On 27 April 2020 we received a call from a client living in self-isolation in Surrey who needed to make a Will during the first national lockdown.
The Law Society
Our initial enquiries revealed that:
- The Law Society had issued Covid-19 guidance in March 2020 asserting that ‘… Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present.’
- It had recently lobbied the Government to relax the testamentary witness requirement. Its proposals were rejected outright on 21 April 2020.
- No further proposals were made or contemplated and the reform process was stalled.
We could not reconcile the Law Society’s position with our interpretation of the natural meaning of section 9 Wills Act 1837, its legislative objectives or centuries of jurisprudence.
The Law Society’s guidance reflected the position taken in the Law Commission’s Making a Will report from 2017. However, we found that although that report asserts, several times, that section 9 requires a physical presence, the three case authorities it cites in support of that proposition established no such principle. (see footnotes)
Dr Bevan’s independent research drew a blank: in 343 years of jurisprudence he found not a single ruling insisting on a testamentary witness’ physical presence. Instead, the courts had consistently ruled that the legislative objective of fraud prevention requires that a witness’ ‘presence’ must provide a clear ’line of sight’: to enable witnesses to attest to what they saw.
Our research led us to conclude that live streaming video conferencing, competently managed, was capable of providing a clear ‘line of sight’ and to a high standard. Furthermore, the ability to permanently record multiple screen views simultaneously, only serves to enhance section 9’s fraud prevention measures.
Acting on our convictions
We undertook technical and Legal research in April 2020 that demonstrated that video conferencing could enable vulnerable testators to sign their Wills in the safety, peace and seclusion of their home, whilst our staff watched online.
When we approached the Law Society for advice and support it refused to review its guidance or to explain its reasons.
Accordingly, on 1 May Solicitors Title prepared and administered the nation’s first remotely witnessed Will using live streaming video technology. This involved drafting a new procedural protocols, a special attestation clause, as well as devising the novel concept of a collateral / backup Will (to be executed conventionally as and when circumstances allowed but which only had contingent effect: if the video Will was later deemed invalid), all of which was unprecedented.
We shared our insights with our professional colleagues in the hope of encouraging the wider use of Video-witnessing.
We were open in declaring what we had done. Dr Bevan wrote up his research and published several articles explaining why video witnessing is compatible with the formalities prescribed by the Wills Act 1837. He also presented a Lexis Nexis webinar. To this day, not one commentator has challenged his analysis.
On 3 June we wrote to the Justice Secretary to recommend video Will witnessing and urging the need for good practice guidance. We also submitted Dr Bevan’s detailed research paper exposing the glaring errors in the Law Commission’s report.
On 19 June, the Advocate General Lord Keene, responded enthusiastically. He acknowledged the ‘clearly outlined assessment’ of the benefits of video Will witnessing’. The letter also praised the strength of our legal argument in fulsome terms: ‘it is an argument with force, set out in impressively comprehensive terms’. He explained that in the absence of any clear ruling on the point and given the Law Commission’s opposing view, the Government had decided to clarify the position with legislation in addition to the official good practice guidance that we had suggested.
On 25 July the Government published official Guidance endorsing video witnessing of Wills with immediate effect. The Guidance adopts our emphasis: of ensuring a clear ‘line of sight’. By validating video witnessing immediately, in advance of the legislation, he was effectively conceding that video witnessing was already fully compatible with the strict formalities prescribed by the 1837 Act, otherwise this would have been ultra-vires.
Technical and legal innovation
On 1 May 2020 weset our first legal precedent by executing our a remotely witnessed Will for our self-isolating client in Surrey.
Solicitors Title’s innovative video Will witnessing protocol employs even higher technical standards than the official Guidance: including ID checks, environmental privacy scoping, capacity checks, audibility checks, confining the video meetings just to the execution process and ensuring that the entire proceedings are recorded in a single multiple screen view.
On 29 July we set a second precedent, this time to execute the Will of a 78 year old expat lady living in Crete. Her Will was witnessed by our staff, from our associated practice, Broomhead & Saul solicitors in Taunton. This was our first cross-border remote Will execution and this probably set an international precedent.
Opening up new legal markets abroad
Our research and innovation (in both law and use of technology) and our successful campaign has enabled our Will writing and Probate teams to offer a range of highly bespoke professional Will writing services to their clients anywhere in the country and even abroad.
We are delighted to act for foreign domiciled expats in Europe and America, helping them to plan their English estates, quickly, conveniently and cost effectively without risking any exposure to Covid-19 using public transport.
Making a difference
If we had not questioned the legal basis and rationale behind the legal profession’s failure to embrace new technology and led by example, none of the above would have occurred.
Click here to view our timeline illustrating the events leading up to this important reform.
To make an appointment to discuss your video Will writing needs, please contact:
Taunton Office: 01823 288121
Contact: Dr Nicholas Bevan
or email firstname.lastname@example.org