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Virtual witnessing of wills: a last resort

Posted on 07 August 2020

It was announced on 25 July 2020 that the Government will draft legislation to amend the provisions of the Wills Act 1837 (the "Wills Act"). This is the outcome of discussions held since late March between the Law Society's Wills and Estates Committee and the Ministry of Justice in response to the measures which were introduced following the arrival of the Coronavirus. Social distancing requirements meant that many people could have been deterred from making a valid will because of the current law.

The new legislation will bring in measures that are both practical and logical. However, questions have been raised over whether the new legislation will lead to a rise in disputes over the validity of a will. Moreover, there is a real concern that the new legislation arguably protects a vulnerable testator less than the existing legislation.

Current formalities

The current formalities to make a valid will are set out in section 9 of the Wills Act:

  1. a will must be in writing and signed by the testator or by some other person in his presence and by his direction; and
  2. the testator's signature (or acknowledgement of his signature) must be made in the presence of two witnesses who must then sign or acknowledge their signature in the presence of the testator.

The word 'presence' under the Wills Act means that a clear line of sight is required between the testator signing and the witnesses; it requires the physical presence of the witnesses. In the context of social distancing measures and where communication via video-conferencing technology has been normalised by the pandemic, concern was expressed that the current law is inappropriate and antiquated. Other English-speaking jurisdictions such as Scotland, New Zealand, Jersey and a number of states in Australia, introduced emergency legislation that relaxes the requirement of the physical presence of witnesses and allows for the use of video-conferencing technology.

The proposed changes

The new legislation in England and Wales will allow wills to be witnessed virtually using video-conferencing technology (albeit that it appears likely that the testator will still be required to sign, rather than remotely instructing some other person to sign 'in his presence and by his direction'). The law, when it comes into force in September, will apply retrospectively from 31 January 2020 for three years (until 31 January 2022) unless it is extended.

The Government has provided guidance on what is required for signing via video-conferencing technology which can be found here including the recommendation that the process should be recorded if possible. STEP (the Society of Trusts and Estates Practitioners) has also released a detailed practice note which can be found here and practitioners should have regard to this.

A last resort

The Government has stated that "[t]he use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so". Since the announcement on 25 July, many across the legal profession have echoed this. This is particularly the case at present prior to the statutory instrument coming into force. Even though the legislation will apply retrospectively, there is a risk that the statutory instrument will require certain formalities that will inadvertently not be complied with. STEP's guidance should be adhered to: "[w]e urge practitioners and intending testators to exercise extreme caution if they decide to participate in the remote witnessing of a will prior to the legislation coming into force".

A rise in disputes?

Given that the process of executing the will necessarily will be drawn out whilst the document is sent between the testator and the witnesses, there will be a greater risk of pages being lost, mistakes in the process being made and even the testator dying before the process is complete (which would mean the will is not valid). This is likely to lead to a rise in disputes.

Simon Davis, president of the Law Society of England and Wales, comments that the guidance "has been issued to minimise fraud and abuse". Despite the guidance, the changes in the law are likely to make it easier on a practical level for a vulnerable testator to be exploited. Two particular areas of concern are explored below: fraud and undue influence.

Fraud

If a testator is considered 'high risk' in respect of COVID-19 and/or is incapacitated such that they cannot go outside/look through a window/go to their front door in order to sign their will in the presence of two witnesses and therefore choose to sign their will virtually, they are likely to rely on a third party (such as a carer, family member or friend) to deliver or post their will to the witnesses. This presents an opportunity for abuse where the third party could replace or remove pages of the will prior to the will being witnessed.

A key element of a valid will is that the testator must 'know and approve' the contents of the will at the time of execution. It would follow that that if pages have been substituted following the testator signing the will but prior to it being witnessed, the testator would not 'know and approve' the contents of the amended will. To avoid this issue, the witnesses could read the will back to the testator or hold each page up to the camera in order for the testator to make sure that the document being witnessed is the same document that the testator signed. However, this practice is not currently recommended under the Government guidance.

Loss of confidentiality

An issue with a witness reading a will out to the testator is that there would be a loss of confidentiality. This is likely to be an issue in relation to all remotely witnessed wills; a witness will now have an opportunity to review the contents of the will in private. In general, many testators wish to keep the contents of their will private and the possibility of losing confidentiality may deter testators from taking advantage of the new legislation.

Undue influence

During the height of the pandemic, many households were thrown together and for those who continue to self isolate for health reasons (many of whom are reliant on others to care and provide for them), the household 'bubble' of isolation will continue for the foreseeable future. The opportunity for exploitation for those most at risk only increases as their reliance on others increases.

Undue influence requires 'coercion' where the testator does something they do not intend and their intention to make a will (their 'animus testandi') is lost. It is not simply a case of someone having influence over the testator. There is no presumption of undue influence in relation to a will (such as there may be in other contexts), rather, if undue influence is alleged, it must be proved by the person making the allegation. That person will need to collect evidence from different sources.

Proving undue influence in relation to a will has always been difficult. During the pandemic, the number of people interacting with a vulnerable person may have decreased resulting in less available evidence. There are limits to how much a witness can see via video-link; it not always possible to tell if there is someone else in the room 'standing over' the testator (albeit off screen). Whilst a witness does not have responsibility for ensuring that a testator has not been coerced, where the witness is not physically present, it may be more difficult for that witness to realise that undue influence is being exerted.

Conclusion

Whilst the new legislation addresses some of the issues arising from social distancing requirements, it may lead to unintended consequences such as the possibility that it will be easier for a vulnerable testator to be exploited. The Government's advice at present is that where people can make their will in the conventional way (i.e. where the will is signed and witnessed in the physical presence of two witnesses) they should continue to do so. Whilst practitioners may be aware of the potential pitfalls in relation to remotely witnessed wills and will be able to advise their clients accordingly, for those people who will not instruct a professional, the message needs to be loud and clear: remote witnessing of wills should be a last resort.

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