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Witnessing wills using video conferencing – a welcome change or a risky reaction to COVID-19?

By Leora Taratula-Lyons -

On 25 July 2020, guidance was published by the Government regarding new legislation which will permit people to witness the signing of wills via video conference software such as Skype, Zoom or Microsoft Teams. This is the first relaxation of the legislation governing the mandatory formalities required when executing a will since The Wills Act 1837 was introduced, almost 200 years ago.  

What is the law on signing wills?

The requirements for a will to be valid are contained in Section 9 of the Wills Act 1837. This section necessitates that the a valid will is signed by the testator (or by another person at the testator’s direction and in their presence) in the presence of two independent witnesses (i.e. not beneficiaries or their spouses) who are present at the same time and sign the will themselves to attest the testator’s signature. Prior to the government’s announcement, the meaning of presence was interpreted to mean that a physical presence was required.

Whilst the new legislation does not replace the requirements of this statute, it will extend its scope by amending the definition of what it means for a witness to be ‘present’. Under the new definition, it will be permissible for a testator to sign their will and their witnesses to later sign the same will when either:

  1. one witness is physically present with the testator and the second witness attends via a video conference; 
  2. both witnesses attend via the same video conference link; or
  3. both witnesses attend via two separate video conferences.

The above scenarios are applicable for all wills signed from 31 January 2020 for two years until 31 January 2022. As such, even though this legislation is intended to be temporary, there is likely to be a great number of wills that are signed in this way.  

How has this new legislation been received?

Whilst this change has been welcomed by many practitioners and clients, others have raised concerns over the increased risk the new procedure will bring, not only in relation to guarding against undue influence or fraud, but also with regards to the extended period of time the execution of the will may now take (as the will that is signed by the testator must be delivered to both witnesses to physically sign themselves).

Although the Government’s guidance encourages these video conferences to be recorded (as this will likely be useful evidence if the validity of the will is ever called into question), this does not necessarily guard against the possibility of undue influence: where another individual could be applying pressure on the testator to sing out of the shot of the camera for instance. There is also the possibility that the recording does not save or the device used runs out of power during the recording.

One of those who have been pleased to hear that this legislation (which dates from the Victorian era) has been updated and made more accessible to the modern day practitioner and client is Emily Deane, a technical counsel at STEP (Society of Trust and Estate Practitioners). She commented:

 

“[w]e are delighted that the government has responded to the industry's calls to allow will witnessing over video conference. By removing the need for any physical witnesses, wills can continue to be drawn up efficiently, effectively and safely by those isolating.”

This opinion is not shared by all. The increased accessibility to sign and witness wills remotely undoubtedly allows for a greater margin of error and many lawyers have remarked that the Government’s changes will result in a rise of contentious probate cases where the validity of a will is disputed after the testator’s death. Whilst a recording of the will signing may be used as evidence, this may be lost or not adequately show that the testator was not being placed under undue influence by another unseen person.

Indeed, Simon Davis, the President of the Law Society of England and Wales, stated that “the government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity. Both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances.”

In anticipation of these potential pitfalls, STEP has even prepared a useful 7-page document with guidance for witnessing a will via a video conference; the length of the guidance alone indicating the great scope for error.

When should the new legislation be utilised?

It is important to bear in mind that despite the relaxation in the legislation, the government still advises that this new procedure should only be used in exceptional circumstances. Therefore, practitioners and testators should continue to adopt the usual process of validly signing and witnessing a will when two independent witnesses are in the same place at the same time unless it is simply not possible to do so. Although the ease of video conferencing is undoubtedly enticing, this approach should still be considered a last resort. 

This new legislation will likely be most appropriate for testators with health conditions and those who are currently shielding and are unable to safely meet with other people to witness their will (who are not their close family members who are likely to be named as beneficiaries in their will and thus cannot be independent witnesses). In these circumstances, the client’s lawyer could be one of their witnesses via a video conference.

There is, however, the added complication that the will that has been signed by the testator and observed by a witness(es) observing via a video link still needs to be delivered to the other witness(es) who viewed the signing remotely. A testator is thus required to post the document or arrange for another person to collect and deliver the will to the witness(es). If the testator is able to do this, it begs the question why the witness(es) could not instead come to the testator’s home and observe the will signing either through a window or open door (i.e. still at a safe distance).

When does this new legislation come into force?

Despite the recent Government announcement, the actual legislation setting out the process of how to ensure the validity of a will that is witnessed by a single witness or both witnesses attending via a video conference link is yet to be published.

Therefore, there is evidently an issue with the legislation having a retrospective effect for all wills that have been signed since 31 January 2020 as, at the time of writing, there is currently no way to guarantee the validity of these wills and when, in a number of months’ time, it is possible to do so, there is the very real risk that the testator may have already passed away.

Therefore, although a modernisation of the law is in many ways overdue, the legislation has arguably remained unchanged for so long because the rigidity in adhering to all the formalities is the best way to guard against fraud and duress. 

As identified above, there are clear risks in utilising video conferencing when witnessing wills, particularly before the legislation has been written and the relevant statute is in force. Before then, whilst the government’s guidance is helpful, it is only the initial announcement and should not be interpreted as instructions as to how to ensure that a will is valid when witnessed in this modern way. Until such time that the legislation is published, practitioners and testators cannot assume that their approach is correct and instead should adopt the usual method of physical presence as has been done for the last two centuries.

 

If you would like to know more about the issues covered in this guide, Vardags offers a free consultation to qualifying individuals.

Our confidential enquiry line is staffed 24 hours, every day of the year. Call 020 7404 9390 today.

Leora Taratula-Lyons

Leora is a Solicitor working on the family law team headed by Georgina Hamblin.