There are specific legal requirements for making and witnessing a valid will. These include that, under section 9, Wills Act 1837:
- a will must be signed by the person making it (“the testator”) (or by another person at their direction) in the presence of two or more witnesses present at the same time; and
- each witness must sign the will (or acknowledge his or her signature) in the presence of the testator.
In Casson v Dade (1781) 1 Bro CC 99, the principle was formulated that to be in each other’s presence the testator and witnesses must be in each other’s line of sight.
The requirement of presence has been considered in the courts on numerous other occasions, but it has not yet been decided whether the requirement is met if a will is witnessed via video-conference. The overwhelmingly adopted practice has therefore been to assume that physical presence is required.
Impact of the pandemic
Public health measures brought in to limit infections have made it challenging for testators and witnesses to meet the above legal requirements.
Limiting social contact to members of the same household has been particularly problematic given nobody who is intended to benefit under a will (or their spouse or civil partner) can act as witness without invalidating their entitlement.
Some have managed to create situations in which the testator and witnesses can maintain a line of sight in each other’s physical presence whilst also social distancing (eg neighbours have acted as witnesses to wills signed on doorsteps and over garden fences).
However, this has not been possible for others. The situation has been especially difficult for those isolating, shielding and/or infirm. There have been reports of very unwell and bedridden testators with no other option having wills witnessed via video-conference, in full knowledge that the documents may be declared legally invalid in due course.
Under the circumstances, and as also discussed in an earlier article, the government has faced mounting pressure from the legal industry to implement new law permitting the use of video-conferencing technology for witnessing wills.
The government has now announced that temporary legislation will be introduced to provide that the requirement of presence for the purposes of making and witnessing wills shall be met where there is a virtual presence, via video-link
The draft legislation has not as yet been published but Ministry of Justice guidance indicates the law will be backdated to 31 January 2020 (the date of the first registered Covid-19 case in England and Wales) and apply to wills made up to 31 January 2022, unless the period is shortened or extended.
The guidance also makes clear that video-conferencing technology should be used as a last resort, and witnesses should be physically present whenever this is possible and safe.
Implications for testators
The announcement has been welcomed on the basis the new law will enable testators with no other option the ability to make a valid will safely.
However, anyone proceeding down the route of making a will with one or more witnesses over video-link should do so cautiously.
Until the new law is actually enacted (this is expected to happen in September 2020), there cannot be certainty that a particular will witnessed via video-conferencing falls within its parameters.
Even following the enactment of the law, there will be multiple challenges when putting in place a video-witnessed will. These will include needing to ensure the testator and witnesses have a clear line of sight of one another, and can see one another signing the will. Sufficient quality of video and sound will be extremely important. It will not be possible to witness a pre-recorded video of a signing.
The process will have to take place over at least two video-conferences, to allow for the will to be sent between the testator and witnesses. This will delay the completion of the document. There will also be a risk of it going missing entirely, or even being intercepted for the purposes of fraud.
Wills made under the new law will inevitably be more vulnerable to challenge than those entered into conventionally. Without physical presence, it will be more difficult to establish that the testator has capacity to make the will, and is not making it under the pressure of undue influence or duress. It will be advisable carefully to consider what measures can be taken to reduce the risk of challenge. These might include recording the video-conferences, and scanning the room with the camera to show that the testator is alone.
There will also be a question as to how witnesses who are not physically present can be certain they are witnessing the same document as they saw the testator sign. Sending an electronic copy by email between the testator and witnesses may assist here. The testator will be unable to keep the document confidential from the witnesses, so it will be important to have confidence in those acting.
The amendment will not apply in cases where probate has already been granted, or where the probate application is already being administered.
In an emergency, having a new will witnessed via video-link may be the best option for a testator who otherwise has no will in place, or whose current will does not reflect their current wishes.
The government’s announcement will provide some reassurance to those who have had no choice but to make a will in this way already. However, once the legislation is enacted, they should review whether its requirements are met by the document.
It is also likely to be advisable for any testator who has had a will witnessed via video-link to re-do it in the physical presence of witnesses as soon as possible afterwards.
Due to the complexity of the issues surrounding the new law, we strongly recommend that anyone who is considering making, or who has already attempted to make, a will witnessed via video-conferencing technology seeks professional legal advice.
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