“Every step of life shows much caution is required” - thoughts on virtual witnessing of Wills

It has recently been estimated that more than half of British adults do not have a valid Will in place whilst the COVID-19 pandemic has jolted many into action to consider whether their affairs are in order and wishes accurately reflected in arguably the most important document one will ever sign given that it governs the succession of one’s assets post-death.

However, in a world where social-distancing, quarantine, self-isolation and shielding are here to stay in some form for the foreseeable future, it has been proving particularly problematic to comply with the various legal requirements needed for a Will to be validly executed.   It will therefore be welcome news that, after months of discussions and consultation, the Ministry of Justice finally announced last Saturday that the formal requirements for executing and witnessing Wills (and codicils) are to be relaxed to permit video-witnessing.  A statutory instrument to reflect this change in the law is to be introduced when Parliament returns from summer recess in September to cover Wills executed in the period from 31 January 2020 to 31 January 2022 (or as long as is deemed necessary)[1].  This announcement comes four months on since the Law Society of Scotland had suggested the procedure would be acceptable, but care clearly had to be taken to ensure that any relaxation of the rules was correctly and properly balanced against the possibility of undue influence and fraud. 

What was the issue?

Section 9 of the Wills Act 1837 (the statute which still governs how Wills are to be executed despite it being almost 200 years old) requires a Will to be made or acknowledged by the testator in the presence of two or more witnesses at the same time, in order to protect the testator against precisely these concerns. 

The meaning of “presence” is what has been causing particular difficulties and igniting debate amongst practitioners as to whether this requires physical presence or whether presence in time is sufficient, even if it is virtual, via video-conferencing platforms, such as Zoom, which has become all the rage in practically every other sphere of life in 2020 thus far. 

Even though the case pre-dates the Wills Act 1837, Casson v Dade (1781) 1 Bro C C 99, for instance, suggested that “presence” may be a fairly elastic concept (“constructive presence”) as the court found that only a “line of sight” is required (where the Will was witnessed either side of a window).  This case had since been quoted favourably in more recent cases which may well have encouraged some brave souls to pre-empt the Ministry of Justice’s announcement to think that video-witnessing would inevitably stretch to mean “presence” as well.  The announcement that the statutory instrument will cover Wills made in the previous six months may well have caused some to breathe a deep sigh of relief if they had taken a punt to witness Wills virtually (provided the strict procedural requirements which remain have been complied with).

However, up until 25 July 2020, most practitioners had been reluctant to be the first test case of whether video-witnessing could be deemed to mean “presence” (and therefore run the risk of the Will not being valid) given there is no authority in case law on the issue, and especially after the Law Society of England and Wales had said in March “it is not permitted to witness a Will via video messaging as a witness must be physically present” (although adding that it was “actively pursuing a way forward”) and the Law Commission previously carved-out Wills in their review of digital signature of deeds (due to the vulnerability of the clients concerned and potential risks involved).  Furthermore, Lord Justice Pill in Shah v Shah ruled that there was no public policy reason to make it possible to permit virtual witnessing because it was felt not the law of the moment.

Therefore, whilst this announcement is helpful in clarifying that “presence” can be “virtual” and therefore makes it is easier to execute and attest a Will validly, appropriate safeguards against abuse ought still to be maintained (and perhaps enhanced) and video-witnessing should be treated only as a last resort.

What are the concerns about using this approach?

This is because the Wills Act 1837 also includes a number of other requirements for a Will to be executed validly which may prove to be particularly difficult to assess from a virtual distance and when not face-to-face. 

These are that the person making the Will must have “testamentary capacity” – i.e. that they know fully what they are doing and are able to express their intentions – and also that they are not being “unduly influenced” by anyone.  Virtual capacity assessments from appropriate professionals may well be available and a potential workaround to any potential concerns.  One must also not forget that a Will cannot be witnessed by beneficiaries, or spouses / civil partners of beneficiaries, lest the gift to that beneficiary being void.  This can prove problematic for those shielding or self-isolating who only live with those who are beneficiaries to the Will.  There may also be concerns with confidentiality and security if witnessing a Will over a video-link. 

Some considerations if adopting this approach

The guidance produced by the Ministry of Justice does not provide for the same prescriptive requirements for virtually witnessing Wills as the amendments to the 1993 Wills and Succession Law in Jersey introduced on 23 April 2020 do, nor do the amendments stretch as far as permitting recording a video to constitute making of a Will (as in Brazil), but care should still be taken.

With the above in mind, it is therefore advised that a detailed record of the instructions and the circumstances surrounding the making of the Will is taken at the time.  One might also consider recording the process to provide further evidence in the event of a future challenge to the Will (both in terms of whether the Will was made in a legally valid way and also to try and detect any indications of undue influence, fraud or lack of capacity).  However, the consent of those involved will be required before this is done, due to data protection reasons.  It would also be worth all of those present confirming that they can see and hear what is happening.  This may not entirely circumvent a scenario where somebody is out of the camera shot coercing the testator to sign and so the practitioner will need to take extra care and perhaps ask for the testator to give a statement to confirm the circumstances in which the execution and attestation took place, such as “I …, wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely”.

It may also be advisable to mention, in the attestation clause of the Will, that virtual-witnessing has occurred, along with details of whether a recording is available.

Even though “presence” will now be deemed to include “virtual”, rather than just “physical”, presence, care must still be taken that there is such a “presence” at the two key stages when it is relevant in the signing process – namely, (i) for the testator’s signature or acknowledgement; and (ii) for the signature or acknowledgement of the witnesses.

Previous case law on the concept of “presence” must still be borne in mind – i.e. to ensure there is visual contact between the testators and the witnesses, the witnesses must know what is going on, to the extent of knowing what the document being signed and witnessed is a Will: “I know that this testator or testatrix has signed this document” (Brown v Skirrow [1903]) and there must be continuous execution (Couser v Couser).

Practically-speaking this will take place by the testator signing the Will (or acknowledging their signature) in the presence of two witnesses via a two-way or three-way video link, who would then be sent the original copy of the signed Will (whilst trying to minimise any delay in sending, preferably in the space of 24 hours) to each sign the same document (or acknowledge their signature), with the testator online at the same time and able to see them sign as well.  It is good practice that the witnesses sign in the presence of each other (but it is not strictly required).  Electronic signatures and counterparts are not permitted – i.e. all original signatures should appear on the same original document – and the Will is only valid once all three individuals have physically signed it.

The key is that all parties are present at the same time (by way of a two or three-way video link), that it is clear the document being signed is a Will (and that the testator wants to put it in place), that the witnesses must see the testator’s signature on the document and the moment of signature (i.e. not just a camera angle of the head and shoulders), and that this takes place in real-time as opposed to being pre-recorded.  The witnesses may also want the testator to reiterate their intention that “this is my signature, intended to give effect to my intention to make this Will”.   Ideally, the Will drafter (i.e. the solicitor) should be watching, even if not acting as a witness, so as to carry out a check on the Will being validly executed, and checks on capacity, undue influence issues and so on.

Should concerns still remain about executing and attesting using this approach, it may be advisable to re-execute the Will when physical witnessing (i.e. the conventional route) is possible again, but witnessing virtually may well be a helpful stopgap in the absence of any other feasible option. 

Whilst the following may not help a testator who is entirely rooted in the U.K. with no connection to other territories, it should also be noted that the Wills Act 1963 provides that even if a Will appears to be improperly executed on the face of it (under English law), it may well be effectively treated as properly executed if it conforms with the internal law of a number of territories connected to the testator.  This could include the territory in which the Will was executed, the domicile of the testator as at the date of execution (or death), the testator’s habitual residence as at the date of execution (or death), or the testator’s nationality.  In addition, if the testator executes the Will whilst on board a vessel or aircraft at the time of execution, the territory in which that vessel or aircraft is registered can apply, and if disposing of immovable property (such as land), the territory of that land, or if all one is doing is revoking a Will, the territory of a previous Will, or if exercising a power of attorney of a trust, the law applicable of that trust.

Conclusion – proceed with caution

Above all, caution is advised if executing a Will in this way (and all other possible options should have been exhausted first, such as witnessing physically at a safe distance, through a window or outdoors), but it is indeed a welcome and useful (if a little rather overdue) back-up option to reflect the practical realities and modern technologies (for those able to use them), and also brings England and Wales in line with other major jurisdictions.  Time will tell whether such a provision is extended beyond 31 January 2022 to become a permanent fixture and indeed whether any further updates will be made to the laws governing the execution of Wills before the statute reaches the grand old age of 200 in 2037… Whatever the outcome, now is as good a time as any to re-visit that item perennially on the “to-do” list – drawing-up a Will – virtually or otherwise!  Please do be in touch if you think we can be of assistance.

[1] It should be noted that the new rules will not apply where the grant of probate has been issued or where the application for the grant has been submitted

This article was written by Charlie Searle. For more information please contact charlie.searle@crsblaw.com or call +44 (0)20 7438 2193.