Video Wills: New legislation on making wills to be introduced

July 30, 2020

By John Waiting and Katherine Traynor 

On 25 July the government announced a significant change to the 183-year-old rules which dictate how wills and codicils are made with the introduction of secondary legislation to allow for the witnessing of wills by video conferencing on a temporary basis from September 2020.

The changes set out in this article are not yet in force; however, the government plans to introduce the necessary legislation in September 2020. The draft legislation is not yet available however, detailed guidance on the strict procedural rules that will apply to witnessing via video conference can be found here.

This article is written following the announcement on 25 July and is supplementary to the issues discussed by Stephanie Kerr (Brabners LLP) and John Waiting (Exchange Chambers), in their article on ‘Drafting Wills during the pandemic’, issued on 24 April 2020. This article will not rehearse the matters discussed in the earlier article.

Overview

This change is introduced in response to increasing numbers of people seeking to make a will whilst shielding or self-isolating during the coronavirus pandemic, both situations giving rise to difficulties for physical witnessing

The rules provide that the use of video link to remotely witness the document signing will be legal in England and Wales and will be back dated to 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except in cases where:

• Grant of Probate has already been issued in respect of the deceased person; and,
• The application is already in the process of being administered.

The legislation will remain in force until 31 January 2022, however this can be shortened or extended if considered necessary.

The government has emphasised that video conferencing for this purpose should remain a last resort, and that where it is possible and safe to do so, physical witnessing of wills should continue.

The Current Law – ‘Clear Line of Sight’

First, it is important to note that all the other rules surrounding the signing of wills remain in place, and the legislation ruling the making of wills in England and Wales is the Wills Act 1837 (‘the Act’).

Section 9 of the Act sets out the requirements for making and witnessing a will:

            Signing and attestation of wills

No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either—

(i)  attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

These fundamental requirements still apply. The testator must sign in the presence of two witnesses, who are not mentioned in the will or married to anyone in the will and the testator (the individual whose will it is). Both witnesses must have a ‘clear line of sight’, and they must all place their signature on the same original copy of the will in the testators’ presence.

Further, it remains that electronic signatures are not permitted, due to the risks of undue influence or fraud against the person making the will. These risks were identified in 2017 by the Law Commission in its consultation paper on wills. However, the Law Commission is undertaking a law reform project, which will include the consideration of the possibility of allowing electronic wills in the future – whether this will be within the period under the new changes is yet to be identified.

During the Covid-19 pandemic, the Courts have upheld wills as valid when witnessed and executed in the following circumstances:

• Witnessed through a window or open door of a house or a vehicle;
• Witnesses from a corridor or adjacent room into a room with the door open; and,
• Witnesses outdoors from a short distance, for example in a garden.

Changes – Video-Witnessing

Under the new law, all of the legislation set out above applies where a will is video witnessed.

As a starting point, the testator should look to hold the front page of the will document up to the camera and should then turn to the page they will be signing – this should be held up too. Before signing, the witnesses should both confirm that they can actually see the testator writing their signature on the will.

In circumstances where the witnesses do not know the testator, they should ask for confirmation of the person’s identity – such as a passport or driving license, which should be held up to the camera.

Once the testator has signed the will, it must then be taken to the two witnesses for them to sign – ideally this should be done within 24 hours. The same procedure used by the testator when signing should be adopted when the witnesses are signing the will, and if the two witnesses are not physically present with each other when signing, then this procedure should be repeated. In both cases, the testator and the other witness should clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice and should ideally be adopted in the current circumstances.

Each video call, the signing of the will and the signing by each witness ideally should be recorded – with the parties’ present confirming orally that they can see and understand what is happening. The recording should not, however be used as a means of witnessing the signature, as pre-recorded videos will not be permissible.

The guidance also contains further details on the requirements for making a valid will via video-link; for example, a bespoke attestation clause should be included in a will where video-witnessing is used. For video-witnessed wills it is advisable to mention that virtual witnessing has occurred, along with details of whether a recording of the will is available. The video is going to have to be kept and backed up in such a way that it cannot be lost.

Further, examples of how the video-witnessing process might be used can be found in the guidance.

Potential Problems

There are potential problems with these changes, namely, the requirement to sign the original document. The parties will have to identify a way of passing the physical document from the testator, to the two witnesses, which poses issues for those who are self-isolating or vulnerable. This also creates a delay between the testator signing the document, and the witnesses signing the same. In that respect, there is a real risk that the testator could die before one or both witnesses have signed the document. For this reason, the parties should look to convey the will from the testator to the two witnesses as soon as practicable and within 24 hours to minimise the risk of the will not being fully validated. If there is any risk of death being imminent, video witnessing would be high risk.

The possibility of an unseen person standing off-camera influencing the testator cannot be discounted. Under the clear line of sight rule, this person would in all likelihood be seen by the witnesses.

It is possible that despite the retrospective effect of the legislation that not all wills that have been signed via video conferencing will be valid, because they have not complied with the requirements as set out in the guidance.

By announcing these provisions before they come into force, and subject to what the law actually says, the government may be creating a period where applications for a Grant of Probate could be issued in order to prevent the later video witnessed will taking effect. The following scenario is envisaged:

1. X is named as an executor and beneficiary under a will conventionally witnessed.
2. The testator makes a subsequent will, after 31 January 2020 witnessed by video, disinheriting X.
3. The testator dies after purportedly making the subsequent will.
4. X applies for a Grant of Probate under the original will before the new law comes into force.
5. Interesting litigation follows…

This may also lead to satellite litigation against solicitors who advised that a will could be witnessed by video prior to the legislation coming into force.

Video-Witnessing – Is this the ‘New Normal’?

The guidance makes it clear that where people can make wills in the conventional way, they should continue to do so. As set out below, it is difficult to envisage there being many examples where a will cannot be witnessed in the conventional way. Further, when the new law ceases to be in force, people will only be able to make new wills using the conventional methods, unless the period is extended, or additional legislation is brought in. It is unhelpful for lay people in particular for the law to be uncertain or to change regularly.

The retrospective nature of this legislation is curious. Any solicitor who advised that a will could be witnessed via video prior to the legislation being announced would have been taking a huge risk that the government would indeed retrospectively validate this method. It is queried whether any solicitor would have taken this risk. Surely there are few, if any, wills witnessed by video in existence.

In the period between announcement and the legislation actually being passed, the default advice must still be to witness the wills conventionally. There is no guarantee that this will become law. Again, solicitors advising a client to have their will witnessed by video is taking an unnecessary risk.

With the provisions of lockdown loosening, it is queried why this is necessary? Solicitors must be praised for their ingenuity of witnessing wills on car bonnets and through windows, and it appears the risks of video witnessing outweigh any benefit.

Whilst virtual witnessing appears superficially helpful as a last resort, or in circumstances where a person is self-isolating, the rigidity of the rules makes it somewhat complicated, and creates potential risks as identified above. It will be important to make an attendance note as to the reasons why the will was witnessed by video, rather than conventionally.

It is noted that will-writing is not a regulated market, the safeguards given by instructing a solicitor are valuable. It is feared that by allowing witnessing of wills to occur online, this may remove what otherwise might act as a useful check and balance, as the testator realises the solemnity of making a will by the way it is witnessed. On the other hand, it might be argued that the video record may act as useful evidence as to what occurred when the will was signed.

Conclusion

As set out above, wills being witnessed by video should be a rare, if testators follow the government advice that it should only be as a last resort. The fear is that wills will be witnessed by video as it is perceived as more convenient or less costly. This would be a retrograde move and is to be discouraged.

When undertaking virtual witnessing, practitioners must ensure the guidance is strictly followed, and that as in any conventional preparation and signing of a will, detailed attendance notes are kept. There should be a clear and obvious answer to the question from a disappointed potential beneficiary, “Why was the will witnessed by video?” It should be a last resort, and the times in which it will be necessary will be rare.

These changes are designed to be temporary. Some may welcome this change on the basis that it may pave the way for a comprehensive update of the law in this area. There will inevitably be calls for the changes to be made permanent. However, this must not come at the cost of weakening the safeguards that the current law provides.

This article is a general summary of the law and should not replace legal advice.