A sign of the times: New rules on executing wills
The government has announced that in September 2020 it will introduce new legislation in England and Wales to allow the witnessing of wills to be made remotely via video-link. The proposed changes are of a temporary nature resulting from the COVID-19 pandemic and will apply retrospectively to wills created since the date of the first confirmed case, 31 January 2020, until 31 January 2022. The only exceptions are in circumstances where an application for a grant is already being administered or where a grant has been issued.
During the pandemic, face-to-face contact has been limited as there are high risks of contracting coronavirus through interaction. This inevitably creates situations where the usual will signing procedure is not possible, and people have already taken to using video conferencing to execute their wills in the hope that they will be deemed legal.
The current law regarding the execution of wills is contained in section nine of the Wills Act 1837 (the Act) and in short, it requires a written will to be signed by the testator or by someone in their presence and by their direction. Their signature needs to be made or acknowledged in the presence of two or more witnesses who are present at the same time with each witness either attesting and signing the will, or acknowledging their signature in the presence of the testator.
In addition to the procedural formalities, there are further criteria to satisfy in order to create a valid will, including the testator being 18, having sufficient capacity and not being under any form of undue influence, all of which remain unaffected by the proposed changes.
Case law has established that to be ‘in the presence of’ for the purposes of the Act, a ‘clear line of sight’ needs to exist between the testator and the witnesses. This infers that some form of physical presence is required, although where the signing can be seen through a window, through a doorway or in an outdoor environment, these would still qualify under the Act.
Whilst some practitioners argue that the current law already permits wills to be witnessed by video-link, there are no guarantees as it has not been tested in court. It is expected that the new legislation will remove any uncertainties in this area by clarifying that people can be virtually present by video for the purposes of the Act. This is provided that the video is of sufficient quality, it is live, and a ‘clear line of sight’ exists throughout the signing procedure. The government has issued a guidance note setting out a five stage process to follow which should be reviewed thoroughly by those considering executing a will in this manner, which can be found here.
It is important to note that until all parties have signed the will, it is not valid, and so should anything happen to one of the parties whilst the document passes between them, or if it is damaged or lost in transit, the process would need to be restarted.
The possibility of fraud and undue influence has always been a concern for practitioners when creating wills, but the government hopes that by retaining the requirement for two witnesses, and preventing the use of counterpart documents and electronic signatures, this will help mitigate against these risks. Inevitably there will be more opportunity for people to commit fraudulent acts with a virtual setting, and so practitioners need to be extra vigilant.
Whilst the new legislation will offer clients an alternative means to execute their will, we believe this should be treated as an option of last resort. To date we have been able to service clients safely observing social distancing guidelines, which also satisfy the current tried and tested requirements. This has included presenting wills to clients through their car window in our car park, or on their doorstep so that they can be signed.
If arrangements like this are not possible however, it would be advisable to make sure the various stages of the video signing process are recorded, and that detailed attendance notes are created for evidence, in the event the validity of a will is later contested.