The restrictions on movement and the requirements of social distancing during the coronavirus pandemic have disrupted the normal conduct of legal business in a number of ways, with many lawyers having to work from home and conduct meetings and court proceedings remotely via videoconferencing technology. But it has taken the government rather longer to come up with a solution as to how the signing of wills can be witnessed during a lockdown when the necessary physical proximity of witnesses can be difficult or impossible to achieve.
Meanwhile, the mounting death count from the virus has obviously focused many people’s minds on their own mortality, and the need to put their testamentary house in order lest the worst should befall them.
The current law
The existing law, as laid down by section 9 of the Wills Act 1837 (as amended) provides that:
“No will shall be valid unless – (a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
In the existing law a witness must have a “clear line of sight’’ of the will-maker signing and understands that they are witnessing and acknowledging the signing of the document. That might permit
- witnessing through a window or open door of a house or a vehicle;
- witnessing from a corridor or adjacent room into a room with the door open;
- witnessing outdoors from a short distance, for example in a garden.
The new law
Now the government is introducing legislation (in the form of a statutory instrument) to allow people to use video-conferencing technology for the witnessing of wills. In the new law, all of the legislation set out above applies where a will is video-witnessed. The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.
Witnessing pre-recorded videos will not be permissible – the witnesses must see the will being signed in real-time. The person making the will must be acting with testamentary capacity – they must be fully aware of what they are doing and able to express their intentions – and not be unduly influenced by anyone. Witnesses should also have the equivalent capacity, and although they may be an executor they may not be a witness if they are a beneficiary under the will. The government guidance recommends that
“the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged – both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.”
The signing and witnessing process will necessarily break down into a number of stages. First the testator will need to see and be seen by the witnesses, and show them the will and enable them to watch them sign it. They should confirm that they have seen and understood the process. Then the will needs to be taken or sent to the witnesses, each of whom will need to see and be seen by the testator and each other in the act of signing as witnesses, and duly acknowledging to one another that they have seen it.
At each stage there has to be that clear line of sight between the relevant parties. Once everyone has done their bit, the will can be returned for safe keeping by or for the testator. It is recommended that an attestation clause in the will itself should record the method of signature and witnessing along with details of whether and where a recording is available.
Signatures using this process will still need to be made on paper – the government has decided not to allow electronic signatures as part of this temporary legislation, due to the risks of undue influence or fraud against the person making the will. These risks were identified by the Law Commission in its 2017 consultation paper on wills. (The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.)
When it will take effect
The new legislation will apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except (a) cases where a Grant of Probate has already been issued in respect of the deceased person and (b) the application is already in the process of being administered. It will continue to apply to wills and codicils made up to two years from when the legislation takes (retrospective) effect (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures.
The advice remains that where people can make wills in the conventional way they should continue to do so. When the new law ceases to be in force, people will only be able to make new legal wills using the normal methods.
In other words, it is a temporary measure which is not intended to herald a permanent change in a practice that has been well established and enforced since even before the 1837 Act and is observed and enforced in a similar way in other common law jurisdictions, such as the United States, Canada, Australia and New Zealand.
Chancery barristers were quick to comment on the promised legislation on Twitter. Barbara Rich pointed out that “Other English-speaking jurisdictions have acted much more quickly to introduce similar changes permitting witnessing by video live stream”. She had earlier discussed the possibility of relaxing the current requirements during the pandemic in two blog posts, prompted by the 18th century case of Casson v Dade (1781) Brown’s Chancery Cases 99: Honora Jenkins and her legacy and Honora Jenkins and her legacy — an update.
Charlotte John pointed out on Twitter that “We don’t yet have the draft SI. Practitioners will need to think carefully about whether or not they are comfortable proceeding with remote witnessing of wills in the absence of the draft law.” She too had anticipated the changes in a post on her Equity’s Darling blog, Will-making and coronavirus: can wills be remotely witnessed? She has now helped draft a briefing note for the Society of Trust and Estate Practitioners: see STEP Briefing Note: Execution of wills using video witnessing (E&W).
Although the proposed legislation will only have temporary effect, there is always the possibility that it will operate as a pilot for any more permanent changes which may eventually result from the Law Commission’s consultation and report. Work on the project was suspended by the Law Commission in order to focus on the law of marriage, which was thought to be a priority at the time. By the time the temporary change expires (particularly if it is extended, as pilots often tend to be), it is possible that a more permanent change will have been agreed. Meanwhile, if you haven’t already made a will, tempus fugit, so carpe diem. (Or to put it less remotely, “no excuses now, time to get a move on”.