Witnessing wills: a new era
By Nicola Laver
Practitioners need to exercise caution when dealing with video witnessed wills, says Matthew Duncan
The issue of making wills has had a lot of attention since the pandemic started.
There has been a huge surge in people making wills and the social distancing measures have created problems for people in terms of complying with the witnessing requirements of section 9 of the Wills Act 1837.
Before the parliamentary recess on 25 July 2020, government made a widely anticipated announcement that it would be introducing legislation modifying section 9 to expressly permit the remote witnessing of wills via the use of video conferencing technology.
Provisions under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020) came into force on 28 September 2020; and while lasting until 31 Jan 2022, they will be backdated to 31 Jan 2020.
The new measures are intended to support testators who are making a will under the conditions of the covid-19 pandemic which have created difficulties in observing normal will-making formalities.
The explanatory memorandum accompanying the statutory instrument that introduced the changes makes clear that while the government considered many other options for reform of will-making in the pandemic, it has chosen not to pursue certain reforms in view of the perceived risks of undue influence or fraud against a testator.
As a result, the legislation does not amend section 9(a) of the 1837 Act, meaning that neither the remote signing on behalf of a testator nor the use of electronic signatures or counterpart documents are permitted under these reforms.
At the time of the initial government announcement, the lockdown rules had been relaxed as covid-19 case num-bers had dropped dramatically and the impediments to making a traditionally executed will had diminished.
However, at the time of writing we now face a potential second wave as covid-19 infections are again on the rise; and restrictions on social contact are being reimposed.
Practitioners may therefore find themselves studying the new measures in detail to assist clients with covid compliant wills execution.
The existing law requires that a testator must sign their will, or acknowledge their signature, in the presence of two or more witnesses present at the same time; and each witness must either sign the will or acknowledge their sig-nature in the presence of the testator.
The meaning of ‘presence’ has generally been understood to mean physical presence with a direct line of sight between the testator and the witnesses.
The new provisions
The material provisions of the new order amend the Wills Act 1837 as follows: in relation to wills made between 31 January 2020 and 31 January 2022 (inclusive), ‘presence’ includes presence by means of video conference or other visual transmission.
So how do these new provisions work in practice? Detailed guidance published by the Ministry of Justice sets out up to five stages with at least two separate video calls.
These can be summarised as follows:
• The testator needs to ensure the witnesses can see and hear one another; the will is identified; a line of sight between the testator and witnesses is established; and the identity of the testator is confirmed.
• The witnesses confirm they can see, hear, acknowledge and understand their role in witnessing the signing of the will.
• Once signed and witnessed, the will should be taken to the two witnesses for them to sign (ideally within 24 hours).
• The witnesses must then sign the will in the presence of the testator, again ensuring that all the parties can see and hear each other and the will.
• If the witnesses are not physically present together at stage 4, this will need to be repeated for the re-maining witness.
The legislation authorises the use of video conferencing technology only for the purposes of the witnessing re-quirements of the 1837 Act.
The change in the law does not expressly allow a testator to direct a person to sign the will on their behalf in the testator’s remote presence.
The legislation does not permit the participants to sign counterpart wills.
The complete original will must be sent back and forth between the testator and the witnesses.
There is a concern that the document could go astray if the will is being sent in the post – the introduction of delay carries with it risk, particularly in the case of an elderly or ill testator.
Practitioners may consider using couriers for the delivery of the will between the parties in order to mitigate issues of validity should the testator pass away or lose capacity before the witnesses sign it.
It is critical that all participants have a clear line of sight. With remote witnessing, some thought needs to be given to the logistics of signing on screen to ensure all parties can see the will being signed.
Verbal confirmation of each stage of the signing is recommended.
It is not enough to see just the head and shoulders of the signing party.
The parties should clearly identify to one another the document and page they are signing by holding it up to the camera. Electronic signatures are not permitted.
Those of us who regularly use video conferencing will have experienced poor connections and screen freeze during video chats.
If the act of signing is not visually witnessed by all participants for any reason, the signing party will need to acknowledge their signature by holding it up to the camera.
Practitioners should ensure the process is recorded and that the recording is retained.
Extra care will be required where remote witnessing is adopted, not only to ensure the formality requirements are complied with, but also to ensure that steps are taken to mitigate the risk of undue influence or fraud.
It is harder to guard against such risks when you are not meeting the client in person. Attestation clauses should also be amended to reflect the manner in which the will has been witnessed.
Full detailed attendance notes reciting the circumstances in which the wills were executed should be prepared. The will should be dated on the day the testator signs.
Whether witnessing via video remains valid beyond January 2022 remains to be seen.
Like many of the changes precipitated by the pandemic, it would not be surprising if some form of video witnessing of wills remained permanent.
However, there are numerous aspects of the video-witnessed will procedure that could raise questions concerning validity, for instance, whether the parties were explicit in their actions when signing the will; and whether they provided a sufficient line of sight for the purposes of being present.
There are also further issues that could be beyond the control of the parties that might render the will invalid.
These could include the testator passing away or losing capacity before the will can be witnessed.
No doubt there will be future cases with disappointed beneficiaries seeking to challenge the validity of video witnessed wills.
Practitioners should, therefore, consider carefully whether it is appropriate for a will to be witnessed remotely.
It’s worth noting that the Society for Trust and Estate Practitioners (STEP) is recommending that witnessing wills via video conferencing is to be used as a last resort and is urging extreme caution.
Matthew Duncan is a partner at Druces druces.com