Video Witnessing Is Valid
Calls For Changes To Wills Amid Pandemic accurately reports the widely held assumption that section 9 of the Wills Act 1837 insists on the physical ‘presence’ of a testamentary witnesses. This view has been adopted by the Law Society in its practice guidance, however it has no basis in law.
Section 9 is both older and younger than the 1837 Act it inhabits. Its first iteration was in the Statute of Frauds 1677 and its last was in 1982: when section 17 of the Administration of Justice Act 1982 substituted its predecessor in similar terms. Three cardinal requirements have endured over the centuries: a will must be in ‘writing’, ‘signed’ and witnessed in the contemporaneous ‘presence’ of the testator.
Section 9 does not specify precisely how this ‘presence’ should be manifested, any more than it defines what is meant by ‘writing’. This has allowed section 9’s wording to encompass new technologies. For example, type written wills would not have been envisaged in 1837 as ‘writing’ but they were in ubiquitous use long before 1982.
Section 9’s only purpose is to safeguard testators from fraud and this governs the construction of its wording. Its broadly scoped wording and its pragmatic objective have preserved its effectiveness throughout more than three centuries of social development. In all this time, not one judicial decision has insisted on the physical ‘presence’ of testamentary witnesses. The case authorities have consistently construed a ‘presence’ in practical terms: as one that provides a direct line of sight that enables witnesses to observe the testator sign or acknowledge the will: no more; no less.
In Where there’s a will there’s a way I argue that if a valid will can be written on an eggshell, Re Barnes Goods, Hodson v Barnes (1926) 43 TLR 71, or scribbled in bad Ukrainian on a bedroom wall, Re Slavinskyj’s Estate (1989) 53 SASR 221, and if an unlettered mark can be accepted as a valid signature, Re Kieran  IR 222, then it is unclear what principle prevents a testamentary witnesses from manifesting their virtual ‘presence’ online, where this is consistent with fraud prevention.
Live-streaming video technology not only facilitates this aim but it enhances the statutory safeguards by providing, for the first time, an audio-visual recording of the entire proceedings. Canada, New Zealand, Australia and Jersey all passed emergency legislation, months ago, sanctioning the use of remote witnessing of wills using this technology. At Solicitors Title LLP, we executed our first video will for a self-isolating client on 1 May and we are happy to undertake this service for others.
Meanwhile, the Law Society is lobbying the government for emergency measures to relax the statutory safeguards. Surely what we should be doing is seeking official guidance from the senior judiciary to devise and publish good practice standards for the remote witnessing of wills. Both the common law and the technology are up to the job. Are we?