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.[1]
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[2] 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.
[1] https://www.legacyforesight.co.uk/forecasting/news/#improved-outlook-for-legacy-income-in-2020
[2] https://blog.charlesrussellspeechlys.com/post/102gbqi/increase-in-contested-wills-and-inheritance-claims
This article was first published by the Institute of Legacy Management. For more information please contact Richard Honey at richard.honey@crsblaw.com or on +44 (0)1483 252616.
Our thinking
IBA Annual Conference
The IBA heads to Miami for its 2022 Annual Conference bringing together thousands hundreds of lawyers from around the world.
Martin Wright
Joint Venture Opportunities
Join our panel where we will discuss various topics including Joint Venture structuring and Partner procurement.
Julia Cox
Mind your business: Safeguarding your business against loss of mental capacity
Practical considerations to safeguard your business against loss of mental capacity.
Jack Carter
Jack Carter writes for eprivateclient on the registration requirements for trust structures holding UK real estate
Trust structures holding UK real estate: Reporting requirements under the Register of Overseas Entities
Sarah Anticoni
FT Wealth quotes Sarah Anticoni on forum shopping
"Being the first to file for divorce is not a foolproof way of securing an English hearing"
Louise Ward
What can UK investors interested in Life Sciences learn from their more experienced, including US, counterparts?
The recent tie-up between Canary Wharf and Kadans demonstrates the enthusiasm to access the lucrative UK life sciences market.
Helen Coward
Helen Coward writes for Tax Journal on the main purpose test for SDLT group relief
Mainly ignored? The main purpose test for SDLT group relief
Patricia Nathan-Amissah
The Ayes have it - Collateral Warranties can be a ‘Construction Contract’
The Court of Appeal handed down its judgment in the case of Abbey Healthcare (Mill Hill) Limited v Simply Construct (UK) LLP
Shivi Rajput
A guide to protecting non-matrimonial assets in divorce
Learn what you need to know about non-marital assets and how to protect them in a divorce.
Jonathan Morley
Charles Russell Speechlys advising Battery Ventures on the sale of SPT Labtech for £650 million.
Battery Ventures has raised over $9 billion to invest in software and services, enterprise infrastructure, and much more around the world.
Alexia Egger Castillo
Wealth Structuring Developments In Switzerland
Careful considerations need to be given when setting up wealth and estate structures and vesting funds in them.
Lisa Wong
New Legislation on Reciprocal Recognition and Enforcement of Judgements in Matrimonial and Family cases by the Courts Hong Kong and the Mainland
The implementation of the Ordinance offers better safeguards to the interests of parties to cross-border marriages.
Sarah Farrelly
Windrush Day 2022 – supporting access to justice
Charles Russell Speechlys is proud to continue supporting survivors of the Windrush scandal in their fight for justice.
Laura Bushaway
The Leasehold Reform (Ground Rent) Act 2022: Landlords and developers beware serious sanctions for non-compliance
The Leasehold Reform (Ground Rent) Act 2022 received Royal Assent on 8 February 2022 and will come into force on 30 June 2022.
Emma Preece
EG quotes Emma Preece on the Picturehouse and BNY Mellon rent arrears cases
“The case is being closely watched by landlords and tenants alike as the impact of the pandemic lives on in the commercial property sector”
David Coates
Charles Russell Speechlys has advised long-standing client Stonegate on a series A investment into Peckwater Brands
Stonegate is one of the largest pub companies in the UK with a rich portfolio that covers over 4,500 sites.
Sarah Farrelly
Pro bono support for major office premises move for charity in Stoke-on-Trent
Emmaus entities provide safe homes, community support and meaningful work to formerly homeless people across the UK.
Charlotte Posnansky
Reporting Restriction Order (reprised) - "Where there is no publicity there is no justice."
Ghassan El Daye
The Business Breakfast interviews Ghassan El Daye on the legal procedures surrounding international extradition
The Business Breakfast interviews Ghassan El Daye on the legal procedures surrounding international extradition
Rachel Warren
Financier Worldwide quotes Rachel Warren on the UK’s Economic Crime Act
Evaluating the UK’s Economic Crime Act