Government renews endorsement our Wills initiative
The Lord Chancellor Dominic Raab has just extended the government’s endorsement of video conferencing being used to witness the execution of Wills during the pandemic for another 2 years to give the Law Commission time to research and advise on legislative reform.
This decision has been warmly welcomed by the legal profession despite the uniform skepticism that greeted Broomhead & Saul’s innovation back in April 2020.
Dominic Raab, said: “This is a common-sense measure that will give vulnerable people peace of mind that their wills are recognised if they are forced to have them witnessed via video due to isolation.”
In April 2020, during the first weeks of the first national lockdown this firm was confronted by a unique challenge. One of our clients needed to make a Will. The only problem being that our client was self-isolating 150 miles away in the rural seclusion of Surrey and at that time the uniformly held view within the legal profession was that a Will can only be validly executed if the testator’s signature is witnessed in his physical presence.
The legal profession had become so accustomed to the practice of witnessing a testator’s signature in their physical “presence” that they assumed that this is what the archaic legislation required. The highly influential Law Commission’s Making A Will report of 2007 said as much and the Law Society and every other special interest group advising in this area agreed. How then could Broomhead & Saul help their self-isolating client?
Dr Nicholas Bevan at Broomhead & Saul solicitors began by undertaking his own research that exposed flaws in the Law Commission’s findings. He discovered that the use of video technology was not only consistent with the anti-fraud objective of this ancient legislation but, properly conducted, it even enhanced that protection.
On 1 May 2020, acting in defiance of the Law Society’s guidance, Richard James and Nicholas Bevan at Broomhead & Saul’s witnessed their client sign his Will in complete safety from the comfort and convenience of his home, using a popular proprietary video conferencing application. This controversial and ground breaking legal precedent established proof of concept.
When the Law Society refused to alter its strictures against video witnessing of Wills, Dr Bevan approached the Secretary of State direct, appealing for his urgent intervention to sanction this practical solution during the pandemic. He also argued the case for good practice standards. Thanks to the active support of local MP, Rebecca Pow, the government responded with astonishing speed: initially by retrospectively sanctioning the practice with official good practice guidance and later, due to the hesitancy within the legal profession, with emergency subordinate legislation clarifying the law.
Dr Bevan said: “I am glad that the first two years of video witnessing has proven to be such a success: not just for Broomhead & Saul but also for the other firms that had the courage to exploited our innovation to help will making clients at home and abroad. I hope that the two years extension in the official approval will give the Law Commission enough time to correct the glaring errors in its Making A Will report from 2007”.
Our ground breaking research demonstrated that remote witnessing of Wills was fully consistent with the ancient legislation that prescribes the formalities for a valid Will. Video witnessing’s validity derives from the proper application of the law;p independently of the minister’s official sanction and the emergency legislation passed in 2020 that sought to reassure an arm of profession that is highly resistant to change.