The formal requirements for making a valid will in England and Wales dates from Victorian times. To make a valid will it must be:
- in writing
- signed by or on behalf of the testator in the presence of two witnesses
- signed by each of the two witnesses in the presence of the testator
The requirement for three people to be present at a single point in time has been hard to achieve for many during the Covid-19 pandemic. Witnesses must not be beneficiaries, so most close relatives are prevented from taking on the role. I outlined in a previous blog post the lengths people were going to, to make a valid will. Although lockdown has now eased significantly, many people still need to isolate and restrict their circle of contacts to members of the same household.
Introducing video witnessing
In response to these unexpected impediments to making a will, the Ministry of Justice has now announced that video witnessing will be permitted. The formal legislative rules will be released in September, but this alteration will be back-dated to 31 January 2020, and will last until 31 January 2022, or ‘as long as deemed necessary’. It will therefore cover the period of the strictest lockdown rules, as well as operating for the rest of the pandemic.
Whilst these proposals are welcomed, they have not fundamentally altered the witnessing requirements – all they have done is confirm that the “presence” aspect can be met remotely. Without downplaying the significance of this (especially as some practitioners had already resorted to remote witnessing during the height of lockdown) this is not the full authorisation of video wills that had been suggested in the media.
What is permitted?
There still needs to be a single written document that is signed by, or on behalf of, the testator and both witnesses. This means there needs to be a two stage process (at least):
- the testator passing the will to the witnesses after the first stage of video witnessing
- the testator arranging a subsequent video call when the witnesses sign
This may be completed quickly if the will can easily be collected by the witnesses (for example, left on a doorstep) but could cause a delay of two or three days if it is to be posted. For many testators, there is no time to waste. Even if time is not of the essence, it is imperative that the witnesses to this process are carefully selected.
Although it is usually possible for another person (not a witness) to sign the will on behalf of the testator, at the testator’s direction, the Ministry of Justice guidance indicates that any such signatory must be in the physical (not video) presence of the testator. This is an understandable safeguard against the potential for fraud, as there is currently nothing that prohibits a beneficiary from signing on the testator’s behalf and still inheriting under the will. However, this would have been the only way that video witnessing of a will could be completed in a single step (and it seems to have been the method employed by a law firm in May). Unless the document can easily be moved between the room in which the testator is located and that of the witnesses, video witnessing will not be a quick and easy solution.
There are also those who are concerned that this change could lead to increased litigation over the validity of wills, especially if the video link drops or freezes during signing. Many testators and witnesses would be concerned about the consequences of a bad internet connection at the crucial moment of signing, and it has been suggested that this would be sufficient grounds on which to challenge a will that was witnessed remotely. Luckily, Section 9 of the Wills Act 1837 allows the testator to sign or acknowledge their signature in the presence of two witnesses. Likewise, the witnesses can then sign or acknowledge their signatures in the presence of the testator. If the video connection were to freeze at an inopportune moment, all that should be required is for the testator to acknowledge “This is my signature” when the connection is restored.
Rather frustratingly, the Ministry of Justice guidance on this aspect is slightly ambiguous, as it makes clear that the witnesses can acknowledge their signatures to the testator, but not vice versa. The more detailed guidance issued by STEP (the Society of Trust and Estate Practitioners) contains full recommendations to follow in the event of technical difficulties. In the absence of formal legislation, this is the best advice to follow.
Despite this announcement, the fundamental requirements that there be a single will, signed and witnessed, remain. So what happens if the witnessing was not done correctly, for example:
- Only one witness was on the first video call; or
- They signed two different copies of the will, instead of circulating a single document?
The introduction of video witnessing brings into sharp focus the difficult balancing act between protecting testators against undue influence and facilitating will-making. Potential beneficiaries will be disappointed when they discover that a will is invalid because the testator failed to comply with legislation that had not been published at the time the will was made. It will be hard for these beneficiaries to comprehend how a document that sets out the testator’s wishes, and which they clearly intended to be their will, can have no legal effect.
The unintended consequence of video witnessing may be that the need for a ‘dispensing power’ will become more pressing. This power would enable a court to admit a document (this could include a video recording or electronic document) to probate on proof that the testator intended it to be their will. The Law Commission proposed the introduction of a dispensing power in 2017, but their subsequent report is still awaited. The scope of a dispensing power would need to be carefully drawn (for example, so that only a document that the testator intended to be their will at the time of their death could be admitted), and it is not a panacea for all formality failure. However, in the midst of a global pandemic, when so many have had to make wills in greater haste than they might have anticipated, such a power would provide much needed additional means by which invalid wills could be ‘rescued’.
The Coronavirus pandemic has highlighted the practical difficulties inherent in the current formalities, and the introduction of video witnessing provides some certainty and clarity. However, the cost of certainty is inflexibility. Although no one would want to rely on a dispensing power to validate an otherwise invalid will, I suspect that the coming year will reveal too many cases in which the introduction of video witnessing was too little, too late. The potential for inequities to be caused by non-compliance with video or physical witnessing requirements in straitened times may hasten the introduction of a dispensing power.
Juliet Brook, Associate Head of Portsmouth Law School, University of Portsmouth