The law relating to the execution of Wills, for example, is set out in an Act of Parliament which is nearly 200 years old – the Wills Act of 1837. Section 9 of the Act sets out the requirements for making and witnessing a will as follows, and these requirements remain in force:
No Will shall be valid unless -
a) it is in writing and signed by the testator (the person making the will) 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 attests and signs the will or acknowledges his signature in the presence of the testator.
The Act also deals with the situation where the testator cannot physically sign the will, and requires the person making the will to have ‘testamentary capacity’ - that they know fully what they are doing and are able to express their intentions - and that they are not being unduly influenced by anyone.
Although required by the Wills Act for executing Wills, being in close physical proximity with two other people who are not likely to be in your family group (witnesses cannot be beneficiaries of your will) goes against government coronavirus guidance. However, it is still possible to be covid- and Wills Act-compliant when executing a will: you can witness through a window or open door of a house or vehicle; from a corridor into another room through an open door or outdoors from a short distance, for example in a garden. This is what we have successfully done so far during the pandemic and we have been helped by very good weather.
All of this though ignores the modern times in which we live and what they offer. Technology and social media have introduced us to the delights of face-timing and video conferencing and there is a generation for whom it is obvious that we should be able to use this technology to make sure that those who want to make a will can do so without putting the health of themselves or others at risk. Guidance issued at the weekend means the law has caught up and it is now possible to witness a will by video link and the law change has been backdated to 31st January 2020, being the date of the first confirmed coronavirus case in the UK.
However, the process of witnessing a will by video conference is not straightforward and the Wills Act still has to be followed. It will be important to either record the video session or set down in writing that the process has been followed and how it has been followed. The guidance says that signing and witnessing by video-link should work like this:
The testator ensures that their two witnesses can see them, each other and their actions. He holds the front page of the will document up to the camera to show the witnesses and then turns to the page he will be signing and hold this up as well. As the witnesses must see the testator signing the will, before signing the testator should ensure that the witnesses can see him actually signing the will, not just his head and shoulders. If the witnesses do not know the testator they should ask for confirmation of his identity - such as a passport or driving licence. All of this should be discussed in the video recording being made of this event, or properly written up notes setting out what has happened.
The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
The will should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document. This period will be longer if the will has to be posted but a will is fully validated only when the testator and both witnesses have signed it: there is a risk that if the testator dies before everything has been done the partly completed will is not legally valid.
The next stage is for the two witnesses to sign the will document – this will normally involve the testator seeing both the witnesses sign and acknowledge they have seen them sign. Stage 1 will have to be repeated for each witness with each witness holding up the will to the testator to show them that they are signing it and then signing it again with the testator seeing them writing their names, not just see their heads and shoulders.
This difficulty will be in evidencing all of this. As I have said, the process could be video-recorded and stored carefully, with prior agreement as to who records and where the video is saved, or careful notes made and, again, stored securely. The execution of Wills is witnessed for very good reasons. The witnesses can confirm how the testator was on the day – how alert they seemed and, arguably more importantly, if anyone else was with them. Often testators will want to have someone with them – the technical challenge of a multi-party video conference alone will require the presence of at least one pre-teenage child for most technophobes like me.
The problem which will follow the best prepared video recorded remote execution of a will is the money grabbing relative who feels they have not received as much as they deserved from the will of the recently departed. The opportunities to challenge the valid execution of a will increase dramatically for those so inclined.
It will be impossible to know for certain if you are witnessing a will over video conferencing whether anyone is in the room with the testator when they are signing the will, forcing them to sign it or do something they are not entirely happy with. If you are that way inclined you will easily hide from the camera.
There may also be the issue of mental capacity. Mental capacity is not a switch, and there are cases where it has been held the testator did have capacity to execute a will in the morning when they were more alert or less intoxicated whereas they wouldn’t have had capacity later in the day. Potentially there could be days between a testator signing the will and his second witness. How long before the case which decides the day on which the testator’s capacity was important – the day he signed the will or the day the will became legally valid when both witnesses had signed?
Whilst any modernisation of the law relating to Wills and probate is to be welcomed, it has to be welcomed with caution. The old-fashioned ways may be the best still, even if we need to start using umbrellas when witnessing Wills in gardens and car parks.