Can I get a witness? Challenges for charities in the age of video witnessing
What was the problem?
In order to be valid under the “traditional” method of executing wills (and codicils) in England and Wales, a will must (among other requirements) be physically executed by the testator in the presence of two or more witnesses at the same time. Witnesses cannot be beneficiaries of the will, or the spouse or civil partner of a beneficiary, and lockdown made validly executing a will increasingly difficult, as it prevented testators from being able to attend solicitors’ offices or other households to have their wills witnessed. Although some have managed to execute their wills whilst adhering to social distancing, for example through a window or at a distance in a garden, this has not been possible for those shielding or self-isolating, or in hospital or care homes.
It is therefore welcome news that on 25 July 2020 the government announced it was introducing legislation to allow people to use video-conferencing technology to witness wills. The new legislation will be backdated to apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, meaning any will witnessed by video from this date onwards will be considered valid (assuming it conforms to the legislation). The reforms are intended to apply to wills made up until 1 January 2022, being two years from when the legislation comes into force, however this end date remains flexible and can be shortened or extended as necessary to accord with other coronavirus legislative measures.
How does it work?
The new legislation allows a will to be witnessed by live video link as long as the testator and their two witnesses each have a clear line of sight of the writing of the signature on the will. The government guidance requires that the video feed must be live and cannot be pre-recorded, but there are no restrictions on the device or video-conferencing platform used. The guidance also allows for a 2-way or 3-way video link, depending on whether the witnesses are physically together (which is the preferred position under the guidance) or in separate locations.
To effect a valid virtual witnessing, the testator should hold both the front page of the will and the page they will be signing up to the camera prior to signing the document to assure the witnesses that the document being signed is in fact their will. The witnesses should confirm that they can see, hear, acknowledge and understand their role in witnessing the signing of the will. They must also see the testator sign and date the will (or acknowledge their signature – especially given the likelihood of a screen freeze mid-signing).
After the testator’s signature has been witnessed, the signed will must be provided to the two witnesses for their signature (and the testator must see them sign in the same manner). It must be the same document and not signed in counterpart. The will is only valid once the testator and both witnesses have signed it; the guidance suggests this should ideally take place within 24 hours, although it is conceded that this may not be possible (such as where the will needs to be posted to each witness one at a time). The longer this process takes, the greater the risks. A careful note should be made of when the last signature is made.
That’s great news! So how will this affect me as a legacy professional?
The shift in government attitude towards the witnessing of wills four months after lockdown began is long overdue and undoubtedly positive, especially as charities only stand to benefit if there is a validly executed will. For those ‘vulnerable’ or older beneficiaries, it might help charitable bequests become a reality, which is in line with Legacy Foresight’s improved five-year outlook for legacy income.
However, the relaxed measures throw up a number of challenges for legacy professionals. The number of contested wills being heard at the High Court rose by 47% from 2018 to 2019 and video link witnessing of wills may result in further increases in contested will cases. It will be harder for witnesses to detect any indications of undue influence, fraud or lack of capacity over video as there could be a third party influencer present during the signing out of sight of the camera. This opens up the video witnessing process to potential abuse especially of the elderly, vulnerable, and those who are less technologically able. Furthermore, in certain circumstances video witnessing will simply be inappropriate, in particular where there are concerns regarding the mental capacity of the testator. Although the government has taken some steps to reduce the risk of undue influence or fraud, for example by not allowing the use of electronic signatures or counterpart documents, disappointed beneficiaries can still see charitable bequests as an ‘easy target’ for challenge. It is good practice for the whole virtual witnessing process, including witnessing the signatures of the witnesses themselves, to be recorded and retained to assist a court in the event that the validity of the will is later challenged.
There is also a risk that the testator’s wishes are unintentionally defeated. Compared with the ‘traditional’ method, there is greater scope for the signing process to go wrong – witnesses omitting to sign during a video link with the testator, the testator (or a witness) dying in between signatures, or the original will being lost in the post. It might be too late before someone notices, especially if a solicitor is not involved. Given the potential pitfalls, the advice to practitioners and testators must be to use the traditional method wherever possible, especially as we are yet to see the draft legislation.
To help protect their charity’s income, legacy professionals should not be afraid to take early advice on the validity of a will and the prospect of successful challenges if executed since lockdown began.