How, during the lockdown, a self-isolating client inspired us to bring about the most significant reform to Will writing since 1677
Video Wills: why they are good news
The law In England and Wales has been changed to sanction the remote witnessing of wills using video conferencing technology. You can now make (or amend) and execute your English will without leaving your home, wherever you live in the world. It has never been easier.
Will making formalities
A will must comply with certain formalities set out in section 9 of the Wills Act 1837, without which it has no legal effect. These include the requirements that a will must be in writing and signed by the testator in the simultaneous ‘presence’ of two witnesses.
These preconditions have survived, little altered since the Statute of Frauds 1677. They endure because they are effective in safeguarding testators from fraud. Consequently, non-conformity risks intestacy.
The Coronavirus conundrum
The pandemic increased the demand for wills. However, this has presented practical as well as health and safety issues, for the over 50s and anyone especially vulnerable to the effects of this potentially deadly virus.
The main difficulty was attributable to the legal profession’s disinclination to innovate. The Law Society’s guidance expressly counselled against using video conferencing technology to witness a Will. Its hesitancy was primarily attributable to its uncritical adoption of the an erroneous statement of law made by the Law Commission’s its 2017 report, Making a Will. The report asserted that the terms ‘presence’ insists on witness’ physical proximity.
Some enterprising lawyers resorted to various potentially indiscrete antics such as ‘through the window’ or ‘drive by’ witnessing, to spare their clients from the risk of exposure.
Our independent research
When this firm was approached by a self-isolating client 150 miles away in Surrey in late April, we reviewed the statutory provisions along with some rather ancient case law. We established that the single governing principle is that a ‘presence’ must be sufficient to afford a witness a ‘clear line of sight’ (the authorities are silent on audibility). Our research also revealed that the case authorities cited by the Law Commission in its 2017 to establish that a witness’ physical ‘presence’ was essential, actually held no such thing.
When we investigated the practicalities of utilising video conferencing to witness the execution of our client’s will, it became readily apparent that far from compromising the statutory objective, the ability to record each and every participant simultaneously in multiscreen view, served to enhance the protection against fraud.
Acting on our findings, this firm executed the nation’s first video will our self-isolating client on 1 May. Later, in July, we set a new precedent when we executed the first cross border will, using the same technology, for an elderly English lady who had retired to live in Crete and who wished to settle her English property in a separate will.
Thanks to video conferencing we were able to administer the execution of her will discretely and safely from our office with our colleagues acting as independent witnesses, without her having to leave her house.
When the informal talks on reforming the 1837 Act between the Law Society and the Ministry of Justice broke down in late April we published our research and approached the Justice Secretary to explain the legal and practical merits of video witnessing of wills, urging him to intervene by issuing Guidance to encourage its wider use during this emergency.
Within just over a fortnight, we received a gracious reply from the Advocate General, Lord Keen QC, acknowledging the ‘compelling’ force of our case and promising prompt action. That arrived on 25 July in the form of official Guidance that retrospectively sanctions video witnessing of Wills with a ‘clear line of sight’. Then, on 7 September, the Government published temporary legislation that expressly authorises video wills, hopefully giving enough breathing space for a more considered judicial determination.
A temporary expedient
One of the more unusual features of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 is that it is a temporary measure. This newly coined definition will lapse automatically after 31 January 2021. Another is that it has retrospective effect; being backdated to 31 January 2020.
The Order plugs the gap in our judge-made law due to the fact that no court has not yet been called upon to decide whether section 9 of the 1837 Act is drafted in wide enough terms to permit a witness’ ‘presence’ to be manifested remotely using video conferencing technology. The Order essentially anticipates what the common law is likely to determine in its own good time.
A useful half measure
The Order allows you to execute your will online, in full conformity section 9 of the 1837 Act, in a two stage process.
The first stage involves you signing your will in the remote ‘presence’ of two witnesses using video conferencing. The second stage uses the same technology to enable you to observe the witnesses attest to having seen you sign your will by signing the same document. The need to post and re post your will inevitably cases some delay.
Other common law jurisdictions have been more adventurous: in authorising the whole process to be undertaken in a single session by also entrusting a lawyer to sign the will in the testator’s name. This also happens to be consistent with our own common law. Unfortunately the government declined to take this step, in the face of the legal profession’s almost universal reluctance to adopt video witnessing.
The new normal?
The Order is an emergency stop-gap measure that resolves the uncertainty on a discrete point of law but only temporarily so. So what happens after 31 January 2022?
The short answer is that that unless the Order is extended, the law will, by default, revert to the status quo ante: which leaves the precise meaning of the term ‘presence’ in this context both undefined and surprisingly protean. Yet, by the same token video witnessing, properly undertaken, appears to be consistent with the pre-existing law. The problem here lies with the lawyers; not the law itself.
Dr Bevan’s account of his experience in pursuing this controversial innovation was published in the December issue of the Taunton Chamber of Commerce’ journal, Chambers Chatter, and reproduced here with the kind permission of the Taunton Chamber of Commerce at www.taunton-chamber.co.uk and DesignBean at www.designbean.co.uk.’ .
Published in the December issue of the Taunton Chamber of Commerce’ journal, Chambers Chatter, and reproduced here with the kind permission of the Taunton Chamber of Commerce at www.taunton-chamber.co.uk and DesignBean at www.designbean.co.uk.’