New Wills Legislation Is Momentous – But It Should Be Welcomed With Caution

This has been co-authored by Partner Caroline Miller and Solicitor Katie Turney from the Private Client team at Wedlake Bell LLP.

The Government’s announcement that it will be introducing temporary legislation to allow wills and codicils to be witnessed remotely via video-conferencing technology has divided opinion amongst Private Client practitioners. Draft legislation has not yet been laid before Parliament, but the Ministry of Justice (“MOJ”) has released detailed guidance to prepare practitioners for this momentous development.

For a will to be valid, it must comply with the formalities set out in the Wills Act 1837 (“the Act”), a law that was in force decades before Charles Dickens wrote Bleak House. The MOJ has confirmed the proposals will not change the stringent requirements of the existing law, but instead will temporarily extend the definition of “presence” in section 9 of the Act, which provides:

“No will shall be valid unless –

  1. it is in writing and signed by the testator or by some other person in his presence and by his direction; and
  2. it appears that the testator intended by his signature to give effect to the will; and
  3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  4. each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

There is a school of thought that “presence” can and should be construed as permitting remote execution, with some firms already offering this option to clients during lockdown. In the absence of a decided case confirming this interpretation (which surely could not have been contemplated by those drafting the Act), however, the validity of such a will could not be guaranteed. The proposed legislation is intended to remove any doubt. Interestingly, it is proposed that the amendment will operate retrospectively so that wills executed virtually from 31 January 2020 will be included. The measure is expected to last until 31 January 2022, although it can be shortened or extended.

Although the definition of presence will be expanded, it will still be essential that the testator and witnesses have a “clear line of sight” to each other’s signatures being added to the will. Furthermore, to minimise the risk of fraud, the Government has decided against the use of counterpart wills meaning, as is currently the case, that the testator and both witnesses must all sign the same physical document.

Despite these safeguards, and the Government’s best intentions, this simple amendment is far from a panacea.

Firstly, it is clear from the guidance that virtual witnessing is intended to be used only where it is not possible to physically witness the execution of the will. This temporary amendment is aimed at those who are shielding, self-isolating, hospitalised or otherwise unable to meet two witnesses in person. This assumes that the elderly and unwell will be able to use the technology unaided. In the case of a deathbed will, this may simply be impossible.

If someone is on hand to assist, are you sure of their motivations? The increased opportunity for abuse cannot be overlooked and may not always be obvious. The testator may appear to be alone, but someone may be standing out of shot or even just outside the room to ensure the testator carries out their wishes. Witnesses must be alert to this and decline to act if they have concerns.

As explained above, counterpart wills are not permitted. This means the testator, who may be unable to leave their home or bed, must find a way of getting the original will to the witnesses. If the witnesses are not in the same household as each other, it will need to be passed on again. A will is only complete once the testator and both witnesses have signed it so if the testator dies in the interim, it will be invalid.

The witnesses must receive a complete will, not just the attestation page. A lay witness rarely gets to peruse the will, so the testator should choose their witnesses carefully, particularly if there are concerns around confidentiality. If the will has been professionally drafted, then the practitioner who drafted the will should act as witness and ideally, provide the second witness.

Whilst many pitfalls can be avoided by testators seeking advice from an experienced practitioner who will be alive to issues such as fraud, undue influence, duress, capacity and identity theft; able to moderate and record the video-conference; ensure the testator has read and understood the terms of the will; and advise on the signature requirements, it seems likely that virtual witnessing will be more readily adopted by lay people unaware that the strict requirements of the Act have not been dispensed with. Whilst for many, virtual witnessing represents welcome modernisation, we would advise proceeding with caution: an increased number of disputes is clearly in our line of sight.

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